The Alberta Teachers ’ Association Applicant - v. -, 2011 ABQB 19

Court of Queen ’ s Bench of Alberta Citation: Alberta Teachers ’ Association v. Alberta (Information and Privacy Commissioner), 2011 ABQB 19 Date: 20110113 Docket: 1003 09672 Registry: Edmonton Between: The Alberta Teachers ’ Association Applicant - and - Information and Privacy Commissioner Respondent - and - Angela Wright Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.A. Graesser _______________________________________________________ Nature of Application

[ 1 ] This is an application by the Alberta Teacher’s Association (ATA) for a number of remedies against the Information and Privacy Commissioner (Commissioner) arising out of a complaint by an ATA member, Angela Wright, that the ATA had breached her privacy rights. The ATA seeks to quash the Commissioner’s decision to hold a hearing into the complaint and to prohibit the Commissioner from conducting a hearing into Ms. Wright’s complaint on the basis of there being a reasonable apprehension of bias.

The ATA also seeks a number of declarations relating to the Commissioner and the actions taken by him with respect to Ms. Wright’s complaints. Background [ 2 ] Ms. Wright is a teacher. She applied to the Teacher Qualifications Committee of the ATA for reassessment of her qualifications. The Committee is the first of two levels in Teacher Qualifications Services (TQS). TQS is an entity that reviews a teacher’s education and experience and provides a Statement of Qualifications so that the school board the teacher works for knows where the teacher should be placed on the salary grid.

Her request was submitted on April 15, 2008. [ 3 ] The Committee met on April 25, 2008 to consider Ms. Wright’s request for reassessment. A new Statement of Qualifications and a Teacher Qualification Service

Summary were mailed to Ms. Wright under a covering letter of May 5, 2008. The letter went astray. [ 4 ] Not having heard from the Committee, Ms. Wright called a manager of TQS regarding the outcome of the reassessment on May 8, 2008, and later that day went to the TQS offices and received a copy of the covering letter that had been mailed out a few days earlier. On May 9, 2008 she contacted Margaret Shane, the ATA’s Information and Records Manager, Privacy Officer and Archivist and obtained a copy of her TQS file. [ 5 ] On May 11, 2008, the ATA learned that the letter and enclosures intended for Ms.

Wright had been put in the wrong envelope and had been mailed to another ATA member in Red Deer, Alberta. The recipient had phoned the ATA to advise of receipt of mail intended for someone else, and had been instructed to return the materials to the ATA. The materials were received back by the ATA on May 14, 2008 and were sent to Ms. Wright at the correct address. [ 6 ] Ms. Wright appealed the Committee’s decision to the Teacher Salary Qualifications Board on July 25, 2008, which was acknowledged to be within the normal three-month time period for an appeal from the Committee.

That appeal was dealt with by the Board on December 2, 2008. [ 7 ] On January 26, 2009, Ms. Wright wrote to the Commissioner to “register a formal complaint” about the telephone conversations she had with the manager on May 8, 2008 and the misdirected mail. Ms. Wright’s correspondence of January 26, 2009 was treated by the Commissioner as a complaint, and a file was opened. The Commissioner notified the ATA by letter of February 10, 2009 that he had authorized a Personal Information and Privacy Act (PIPA) director, Jill Clayton, to act as a portfolio officer, investigate a complaint and report back to him.

He did not provide the ATA with a copy of the complaint letter at that time, or identify the complainant as being Ms. Wright. [ 8 ] Ms. Clayton investigated the complaints, and wrote the ATA on March 3, 2009 providing details of the complaints and identifying Ms. Wright. Ms. Clayton completed her investigation and prepared a report dated May 18, 2009 essentially dismissing the complaint. The investigation report was sent to both Ms. Wright and the ATA. Ms. Wright wrote to Ms. Clayton on June 4, 2009 requesting that the matter be sent to an inquiry.

Her letter of June 4 was not provided to the ATA. [ 9 ] By letter of June 15, 2009, Ms. Clayton advised the ATA that Ms. Wright was not satisfied with the investigation and had requested an inquiry. She told the ATA that the file had been sent to the “Adjudication Unit”. On June 18, 2009, the Director of Adjudication wrote the ATA advising that:

...the file will now be prepared for Inquiry. This involves resolution of a number of procedural matters, including confirmation that the matter is appropriate for an Inquiry, a decision as to whether the Inquiry will be oral or written, assignment of an Adjudicator, and the formulation of the issues that will be dealt with in the Inquiry. If the Commissioner decides to proceed with an Inquiry, a Notice of Inquiry will be sent to all Parties giving details about the issues and the process.

This will occur 2 ½ to 3 months before the scheduled inquiry date. [ 10 ] The letter went on to advise that the Commissioner had extended the time for completing the review of the case “in accordance with section 50(5) of the Personal Information Protection Act ” to June 30, 2010. He had extended the completion date to July 31, 2009 by letter to the ATA dated April 24, 2009. [ 11 ] Nothing was heard about the matter by the ATA until it received a letter from the Commissioner dated March 10, 2010.

In that letter, the Commissioner advised that he had “agreed to hold an inquiry into the matter”, and that his office was in the process of preparing a Notice of Inquiry. He enclosed a bulletin “Changes to Inquiry Procedure” and an “Address for Service Form” which he asked the ATA to complete and return. [ 12 ] Ms. Shane responded on behalf of the ATA on March 19, 2010, objecting to the matter proceeding. She stated: Our objection primarily relates to the breach of your timeline and secondarily to the nature of the complaint itself.

We attach copies of the letters which speak to the basis of our objections, since three of them do not appear to have been copied to the complainant, as well as the mailing which is the subject of the complaint. [ 13 ] She referred to the recent Court of Appeal decision in ATA News v. Information and Privacy Commissioner , 2010 ABCA 26 , and argued that decision made it clear that the Commissioner had not properly extended the mandatory time under s. 50(5) of the Act.

She stated “you should have come already to the conclusion that you have no more power to continue with the inquiry and should so notify the parties.” [ 14 ] With respect to the nature of the complaint, Ms. Shane advised that because the complaint was “solely about one piece of misdirected mail”, the ATA was confident that the Commissioner would not decide to hold an inquiry.

She noted that his March 10, 2010 letter does not “refer to any reason which might amount to prejudice if you did not hold an inquiry or if you were not to continue with the inquiry”, and again referring to ATA News , stated that “even if there were any prejudice to the parties, continuing the inquiry in this case would be outweighed by the prejudice to the values to be served by PIPA.” She concluded: As neither of the tests in paragraph 35 of ATA News can be satisfied in this case, I have concluded that this notice of your default is necessary and should suffice to terminate the inquiry process, in accordance with the presumptive consequence set out in paragraph 37(2) of ATA News .

Kindly confirm to the parties at your very earliest opportunity that the inquiry is hereby terminated. [ 15 ] Ms. Shane’s letter was copied to Ms. Wright. [ 16 ] Ms. Wright wrote to the Commissioner on March 30, 2010 thanking him for confirming that an inquiry would proceed, and commenting on Ms. Shane’s letter of March 19, 2010. She stated “I am quite frankly shocked by its aggressive tone”. She proceeded to deal with the merits of her complaints.

[ 17 ] On April 27, 2010 the Commissioner issued a decision, Decision P2010-D-001, dealing with “the objections of the Alberta Teacher’s Association or ATA to the continuation of this matter, on the basis of the decision of the Alberta Court of Appeal” in the ATA News case. He dealt with Ms. Shane’s arguments that the presumption of termination had arisen, and concluded that it had not. He noted at paragraph 11 of his decision that the ATA had 45 days from that date to take the decision to judicial review, and if the ATA did not do so, he would issue a Notice of Inquiry after the 45 days had passed. [ 18 ] He then made some “concluding observations”. At paras. 12 - 14, he stated:

(12) I make some concluding observations. One is that objections to time extensions add steps that themselves extend the time a matter takes, and expend the resources of this office that could otherwise be used to decide substantive issues. The ATA’s complaint is about the time taken on this matter, yet its objection has further delayed the process.

(13) Further, the objection seems intended to ultimately defeat the purposes of the Act. I recognize that a party acts within its rights in bringing an objection based on timing, and organizations that are prejudiced in their ability to respond by the passage of time should not hesitate to do so. However, the ATA has not indicated how it would be prejudiced if the matter were to proceed. A primary purpose of the Act is to enable me to provide direction to organizations as to whether they are in compliance with their duties under the legislation.

In the absence of such prejudice, I would ask respondent organizations, even private ones, to consider whether it is in their own and the public interest to make objections for the purpose of avoiding direction as to how to meet their duties under the legislation. As well, it is disingenuous for organizations to selectively rely on the timing provisions of the Act, or not, depending on whether doing so meets their own interests.

(14) My final observation relates to the tone of the ATA’s letter. It states: As neither of the tests in paragraph 35 [of the ATA case] can be satisfied in this case, I have concluded that this notice of your default is necessary and should suffice to terminate the inquiry process, in accordance with the presumptive consequence set out in paragraph 37(2) [of the ATA case]. Kindly confirm to the parties at your very earliest opportunity that the inquiry is hereby terminated. Thank you for your immediate attention to this matter.

The decision as to whether this inquiry is to continue must be made by me having regard to the submissions of both parties and the facts and law I regard as relevant. This demand that I terminate the inquiry, at my earliest opportunity, simply on the basis of the ATA’s “notice of my default”, reflects a misunderstanding of the different roles of the parties and the decision maker in this process. The ATA may put forward its views and make submissions, but it is not the decision-maker. Furthermore, while parties need not be deferential, they must be appropriately respectful of the role of the tribunal.

I concur with the comment of the Complainant in this case that the demand made by the ATA, as quoted above, is not appropriately respectful. [ 19 ] By Notice of Motion dated June 9, 2010, the ATA sought judicial review of the Commissioner’s decision P2010-D-001. Issues [ 20 ] Initially, one of the central issues on this application for judicial review was whether the Commissioner had lost jurisdiction over Ms. Wright’s complaints by virtue of the passage of time, and the Court of Appeal decision in ATA News .

However, shortly before the application was argued, the ATA withdrew those portions of its application relating to timeliness of the Commissioner’s actions and issues connected with ATA News . The withdrawal of those issues was due to the fact that the Commissioner’s appeal to the Supreme Court of Canada was being heard the following week, and the Commissioner had applied to stay this application until after the Supreme Court decision had been given.

[21] As a result, the application proceeded on the other grounds for review of the decision and for the other declaratory reliefbeing sought. [22] The remaining claims by the ATA are for: 1. Certiorari quashing Decision P2010-D-001 (the “Decision”); 2. A declaration that the Commissioner fettered his discretion to screen complaints pursuant to ss. 36(2)(e), 49 and 50(1) of PIPA byaccepting a de minimus complaint and a complaint raised outside the timeline for requesting a review pursuant to s. 47(2) of PIPA; 3.

A declaration that the Commissioner fettered his discretion to screen complaints arbitrarily and in an unwarranted andunreasonable manner; 4. A declaration that the comments of the Commissioner in the decision give rise to a reasonable apprehension of bias in that they: (

A) contain comments about the motives and conduct of organizations such as the Applicant that the Commissioner has statedpublicly; (

B) attribute bad faith and dishonesty and improper motives to the Applicant; (

C) show such a predisposition in favour of the Complainant that the Inquiry should not remain or continue in the hands of theCommissioner; (

D) reflect a closed mind and evince prejudgment; and (

E) are not impartial and disinterested in respect of their characterization of the Applicant’s motives. 5. Prohibition prohibiting the Commissioner from taking any further action in relation to the matter under inquiry; 6. Mandamus directing the Commissioner to remove Orders and Decisions, including the Decision, that have been quashed by theCourt on review from the OIPC Website, or post them in every case with accompanying notice that they have been quashed on judicialreview; and 7. Costs. [23] Both the ATA and the Commissioner referred to a large number of cases in support of their respective positions.

Those casesare listed in Appendix I to this decision. It is not necessary for me to deal with all of the cases cited. Preliminary Matter at Application [24] The ATA filed two affidavits in support of their motion, one from Margaret Shane sworn June 7, 2010 and the other fromVictoria Petrach, sworn June 9, 2010. In its response, the Commissioner applied to strike portions of the affidavits as being improper andinadmissible on this judicial review. In response to that, the ATA opposed the Commissioner’s standing to challenge the affidavits.

Asthe first order of business on the motion, I dealt with the Commissioner’s standing, and I will record here my decision and reasons fordecision. Standing of Privacy Commissioner on Judicial Review [25] The ATA referred to Brewer v. Fraser Milner Casgrain LLP, 2008 ABCA 160 and Re Northwestern Utilities and the City ofEdmonton, (SCC), [1979] 1 S.C.R. 684, in support of its argument that the Commissioner lacked standing to challengethe evidence of the Applicant on judicial review. They cited the basic statement in Brewer at para. 37: The policy of Canadian law (and doubtless English law) is plain.

The statutory tribunal should be patently neutral. It cannot do that if itdons the uniform of one army, still less if it enters that army’s front line and joins its bayonet charge.

And at para. 23: The tribunal is not a party in the traditional sense.

Indeed after service of the writ (or notice of motion), the tribunal below gives up its file and loses jurisdiction over the case. [ 26 ] As noted by the ATA, the reason for that is described in Northwestern Utilities , in that the tribunal has already had its opportunity to address the facts and the conclusions that may arise from the facts: The Supreme Court stated at page 709: Such active and even aggressive participation can have no other effect than to discredit the impartiality of an administrative tribunal either in the case where the matter is referred back to it, or in future proceedings involving similar interests and issues or the same parties.

The Board is given a clear opportunity to make its point in its reasons for its decision, and it abuses one’s notion of propriety to countenance its participation as a full-fledged litigant in this Court, in complete adversarial confrontation with one of the principals in the contest before the Board itself in the first instance. [ 27 ] As a result of these cases and above statements, the ATA argued that the Commissioner had no standing to take a position on Affidavit evidence, or any evidence, in a judicial review application.

According to the ATA, the Commissioner is limited to clarifying the Record or participating in jurisdictional issues and issues regarding the appropriate standard of review. [ 28 ] I agreed that the ususal position for a quasi-judicial tribunal on judicial review is just as described above: clarifying the record and making submissions on jurisdictional issues and the standard of review.

But that is when the issue before the Court is in relation to the reasonableness or correctness of the underlying decision. [ 29 ] Here, the ATA sought to extend the principles from Northwestern Utilities to situations where the body being reviewed was accused of bias, fettering its discretion by failing to deal with issues, and acting in an unfair, unreasonable and abusive manner.

None of the cases cited by the ATA support the argument that a quasi-judicial tribunal cannot defend itself from those types of allegations [ 30 ] Had these matters been raised before the Commissioner either in the first instance or following his decision by way of a request for reconsideration, and had the Commissioner been able to deal with these matters in the first instance, it might well have been inappropriate under the Northwestern Utilities principles for the Commissioner to argue the merits of his decisions on those issues.

But these issues of bias, fettering discretion and unfairness were raised for the first time on this judicial review. I saw nothing improper with the Commissioner making representations with respect to issues that relate to his conduct, and to the propriety of the materials the Applicant put before the Court as they relate to those issues.

I saw little difference between allowing the tribunal to make submissions with respect to jurisdiction or the standard of review and responding to attacks on its conduct. [ 31 ] The ATA further argued that any defence of the tribunal should come from the opposing party to the application, in this case Ms. Wright. Certainly in some cases, the Respondent to a judicial review application takes up the cause of defending the tribunal as part of its defence of the decision being reviewed.

When that is the case, there may be no need for the tribunal to participate directly on the issue, although I am doubtful that the tribunal must sit back and say or do nothing if the Respondent makes ineffective arguments, incomplete arguments, or arguments that the tribunal disagrees with. Avoiding duplication of arguments is one thing, but arbitrarily preventing a full discussion of the issues by disallowing active participation by the tribunal is contrary to the interests of justice. [ 32 ] Here, Ms. Wright is self-represented.

She should not be expected to argue technical points of law, essentially on behalf of the Commissioner. If I were to have acceded to the ATA’s argument, the Commissioner would have had to remain silent and unanswering to a vigorous attack on his conduct and his impartiality. The Court would have been put in the difficult position of having to do its own research into the law in the area and then either argue the Commissioner’s case for him or play Devil’s Advocate with the ATA.

That is not a seemly role for the Court, and while sometimes that is necessary on ex parte applications or unopposed matters and in other limited circumstances to avoid injustice, it is doubtful that such an approach is appropriate where a quasi-judicial body is being challenged for

bias and improper conduct. [ 33 ] When the tribunal being challenged is not being defended by the Respondent and the tribunal wants to address the Court on these issues, it would be a rare circumstance that the tribunal should not be heard. [ 34 ] The Commissioner referred to: O’Malley v. Calgary Separate School District No. 1 , 2006 ABQB 126 , Czerwinski v. Mulaner , 2007 ABQB 536 , 979899 Alberta Ltd. v. Alberta , 2008 ABQB 57 , and Bonsma v.

Alberta (Information and Privacy Commissioner) , 2010 ABQB 209 , which were of assistance but not directly on point as no objection had been raised in those cases to the Commissioner making submissions on the applicants’ affidavits. [ 35 ] I accordingly ruled that the Commissioner had status to make submissions as to the contents of the ATA’s affidavits, as well as to make submissions as to the ATA’s arguments other than submissions as to the correctness or reasonableness of the Decision.

Commissioner’s Objections with Respect to ATA’s Affidavit Evidence [ 36 ] The Commissioner’s position on the ATA’s Affidavits was that the Affidavits in support of a judicial review application should be limited to: 1. Completing or correcting the record before the tribunal; and 2. Confined to facts within the knowledge of the deponent (following Rule 305) [ 37 ] Anything not falling within those categories should, according to the Commissioner, be struck. [ 38 ] The Commissioner cited United Food and Commercial Workers Union, Local 401 v. Westfair Foods Ltd. , 2010 ABCA 120 , Lethbridge (City) v.

Daisley, 2000 ABCA 79 , Nortel Networks Inc. v. Calgary (City) , 2008 ABCA 370 and TNL Industrial Contractors Ltd. v.

International Brotherhood of Electrical Workers, Local Union 424 , 1998 ABQB 241 . [ 39 ] The Commissioner objected to those portions of the affidavits that went beyond the record of proceedings before the Commissioner, and those portions of the affidavits that were hearsay (not being within the personal knowledge of the deponent) and hearsay statements that were not accompanied by the grounds and source of the deponent’s belief. [ 40 ] The Commissioner presented detailed objections to most of the affidavit evidence, under the broad topics: 1. Information duplicating what was in the Return; 2.

Evidence not before the Commissioner; and 3. Evidence relating to the merits of the Decision [ 41 ] The ATA responded partly on the basis that Rule 305(3) of the old Rules of Court applied so as to allow hearsay on interlocutory applications such as this, and partly on the basis that it was unfair for the Commissioner to object to their affidavits, because the Commissioner’s return was incomplete.

Hearsay [42] The Commissioner argued that United Food v. Westfair concluded that a judicial review application is a final proceeding andRule 305 applies. That Rule states:

(1) Affidavits shall be confined to the statement of facts within the knowledge of the deponent. [43] Subsection 3 permits affidavits containing statements of belief so long as the source and grounds are included. [44] The ATA acknowledged that Rule 305(1) generally requires that affidavits contain only statements of fact within theknowledge of the deponent, but it submitted that hearsay is permitted on interlocutory applications under R. 305(3).

It argued that thisapplication for certiorari, mandamus and prohibition is interlocutory and thus there is no objection to any of the hearsay components ofthe affidavits. [45] I note that new Rule 13.18(3) is similar to old Rule 305, although it appears that the requirement of personal knowledge underthe new rules may be more stringent than before, as 13.18(3) refers to affidavits used in support of applications which may “dispose ofall or part of a claim”.

Since this matter was argued under the old rules, and I made my ruling at the time of the application, this decisionshould not be considered any authority under new Rule 13.18. [46] The ATA also argued that the only basis for striking out an affidavit or portions of it are where the affidavit contains mattersthat are “scandalous, irrelevant or otherwise oppressive: (R. 307), and none of those conditions were present in either of its affidavits. However, Rule 307 must be read in conjunction with R. 305.

Inadmissible evidence does not have to remain part of an affidavit or on therecord if it is not scandalous, irrelevant or otherwise oppressive. There is a jurisdiction to strike inadmissible portions of an affidavitimplied in Rule 305. [47] The ATA’s argument that the present application is interlocutory was an interesting one. To the extent that any of theremedies are “final” and put an end to the dispute, hearsay would be prima facie inadmissible.

But to the extent that any of the remediesare interim or interlocutory, properly identified hearsay is not objectionable by itself. [48] Here, the ATA did not ask the Court to grant certiorari and make its own decision that either Ms. Wright’s complaint was deminimus and should be taken no further, or that it was out of time. Those would be final orders. Instead, the ATA sought in itsOriginating Notice to quash the decision, prohibit the Commissioner from proceeding with the inquiry, and sought mandamus withrespect to the contents of his website.

During the course of the argument of the application, the ATA somewhat revised its position oncertiorari, seeking to quash the Decision and remit the matter back for determination by a different tribunal (i.e. not the Commissionerhimself), without fettering its discretion. [49] In some respects, therefore, the certiorari remedy morphed into interlocutory relief. Prohibition is normally a final remedy,but could also be subsumed within the terms and conditions on which the matter is remitted back.

Mandamus would be a final order,requiring permanent changes to the way in which the Commissioner puts information on his website. [50] In United Foods v. Westfair, the Court of Appeal noted at paragraph 6: The chambers judge said that he excluded the affidavit because judicial review is a final proceeding, not an interlocutory one (which isnot disputed on appeal). Rule 305(1) bars affidavits which are not “within the knowledge of the deponent”, except on interlocutorymotions.

Even where such hearsay is admissible, the “source” and “grounds” must be given (R. 305(3)), and neither was given here.That is a serious requirement, not a technicality: Scarr v. Gower, (1956) (BC CA), 18 W.W.R. 184, 188 (B.C. C.A.).That law was not disputed. Therefore, the chambers judge was correct in excluding considerable parts of the affidavit. [51] The point was contested here, and the Court of Appeal appears to leave open the question whether judicial review by its

nature is a final proceeding within the meaning of Rule 305. [ 52 ] In my view, the question was answered by looking at the relief sought on the application. If the relief sought is final relief, intended to put the matter completely to rest, there is no scope for Rule 305(3) to apply.

If the relief sought contemplates further proceedings, the matter may in some circumstances be viewed as interlocutory, opening the door to Rule 305(3) and the use of information and belief on such applications. [ 53 ] While the only relief sought by the ATA in the Originating Notice was final, that position changed during the application, where the possibility that the Court might remit the matter back loomed. [ 54 ] I ultimately did not consider this be a wholly interlocutory application. The ATA sought certiorari , prohibition and mandamus .

While the certiorari aspect of the matter might be interlocutory, depending on the appropriate remedy (sending the matter back for rehearing or reconsideration or for further reasons is not uncommon), the other remedies sought here were essentially that the Commissioner and his office be prohibited from any further actions related to Ms. Wright’s complaint, and that various decisions be expunged from the Commissioner’s website.

Nothing could be more final than those aspects of the relief sought by the ATA in this application. [ 55 ] Thus hearsay was inappropriate on the issues of prohibition and mandamus , and any such hearsay was improperly before the Court. With respect to the certiorari aspects of the application, I considered that because this was a type of hybrid situation (where there may be final aspects and there may be interlocutory aspects, depending on the result) any use of hearsay had to be approached with caution.

But in any event, the mandatory aspects of R. 305 relating to identification of sources and a belief in the truth of the hearsay had to be observed. Unattributed hearsay could not be considered with respect to any aspect of the application. [ 56 ] The remedy in this situation was not to strike the affidavits because portions of them were contained inadmissible hearsay, nor to expunge the offending portions. Rather, I advised counsel that the hearsay portions were inadmissible on prohibition and mandamus , and that I would not consider them in relation to this application.

Unsourced hearsay on certiorari would also not be considered. Properly sourced hearsay would be considered, but might be given different weight than statements within the deponent’s personal knowledge. [ 57 ] As a result, no line-by-line analysis of the affidavits was done. It is fairly obvious from the affidavits which portions were inadmissible hearsay and which portions were not. [ 58 ] I allowed one exception to that basic ruling: the inclusion of publicly available documents or records appended to Ms. Shane’s affidavit. The Commissioner objected to Ms.

Shane appending documents that were not originals or within Ms. Shane’s personal knowledge. While it is true that documents such as a news release by the Commissioner and other proceedings before the Commissioner are hearsay, and (if this were a trial) ought to be proven in a formal way absent the agreement of the other side, none of the documents or records appended to Ms. Shane’s affidavit lacked authenticity and I admitted those documents as being relevant on the application.

The Commissioner’s objection to the admission of those documents was in my view unnecessarily technical and formalistic as nothing turned on authenticity, accuracy or completeness. Unfairness [ 59 ] The ATA submitted that it is manifestly unfair to the Applicant for the Commissioner to object to the affidavits because the Commissioner failed to include in the return the Investigator’s Report while putting in Ms. Wright’s response to the Report. I failed to see how that omission made it unfair for the Commissioner to object to other matters in the Affidavits.

Although the Commissioner did not file an affidavit in response to Ms. Shane’s affidavit, counsel for the Commissioner submitted that the Investigator’s Report was not something that should have been in the Return because it was not before the Commissioner, and that the Commissioner made a point of not looking at such reports because they were prepared for the purpose of settling complaints. [ 60 ] This was obviously an area where input from the Commissioner is helpful, if not necessary. It went to determining what the

Record contained. I did not see that the Commissioner erred in not including Ms. Clayton’s Report. If it was not before him when hemade the Decision, then it would not be relevant to the Return because it was not something that he relied on to make the Decision. Ms.Wright’s letter, on the other hand, was her letter of request that the matter proceed to an inquiry. It would properly be included in therecord.

So I imputed no evil motives to the Commissioner as the ATA appears to argue. [61] On the other hand, the ATA relied on the Report to support its argument that the Commissioner fettered his discretion bydirecting that an out of time, de minimus matter go to a hearing. Although I failed to see the connection between that argument andsomething that the Commissioner did not see or consider, as the ATA thought the Report was necessary to support its arguments in thematter and to put Ms.

Wright’s letter into context, I exercised a discretion to allow it in and ruled it admissible, subject to whateverweight it may be worth. Bias and improper conduct [62] Because of the allegations of bias and improper conduct on the part of the Commissioner, certain parts of Ms. Shane’saffidavit were relevant to those issues. As bias had not been raised before the Commissioner, there were no materials relating to that issuein the Record, other than the complained-about portions of the Decision itself. So I admitted those portions of Ms.

Shane’s affidavit intoevidence. [63] I considered the cases submitted by the ATA on the issue: Lethbridge (City) v. Daisley, (2000), 2000 ABCA 79 , 250A.R. 365, Ward v. University of Prince Edward Island, (1997), (PE SCTD), 157 Nfld. & P.E.I.R. 129, TNLIndustrial Contractors Ltd. v. International Brotherhood of Electrical Workers, Local Union 424, 1998 ABQB 241 , [1998]10 W.W.R. 47, Wood v. Wetaskiwin (County No. 10), (2001), 2001 ABQB 681 , 290 A.R. 37 and Asad v.

KinexusBioinformatics Corp., 2010 BCSC 33. [64] Those cases support the ATA’s position that affidavit evidence is admissible in judicial review matters where there are issuesof procedural unfairness or bias (which must be the case as there will otherwise usually be nothing in the Record to support any suchallegations). The most useful

summary of this area of the law is found in TNL, where Wittmann J.A. (as he then was) writing for aunanimous Court of Appeal stated at para. 28:

(28) In addition, I am inclined to accept the view advanced by the Union and the Board that affidavit evidence is admissible on judicialreview for the limited purposes of demonstrating a complete lack of evidence on an essential point, and thus jurisdictional error, or todisclose a breach of natural justice upon which the record is silent. (Securicor Investigations and Security Ltd. v. Labour Relations Board(Ont.), supra; United Steel Workers of America and United Steel Workers of America Local 7105 (1985), 8 O.A.C. 372 (Ont. Div.

Ct.);Re Keeprite Workers' Independant Union et al. and Keeprite Products Ltd., supra; and Quality Control Council of Canada v.International Radiography and Inspection Services, supra). And at para. 35:

(35) There is certainly authority for the proposition that in some circumstances affidavits will be admitted on judicial review of atribunal's decision. However, when these cases are carefully read, and the statements extracted by the applicants are read in context, theEmployer's position that the affidavits ought to be admissible in the present case is considerably weakened. The case law indicates thataffidavits will be admissible for the purpose of showing the record was incomplete, or that there was a lack of evidence on which theBoard could base a finding of fact.

Affidavit evidence may be admitted for the purposes of adding evidence which is not already beforethe court on the judicial review. This is so the court has a complete and accurate depiction of all the evidence that was presented to theBoard, to allow the court to consider all the relevant facts, and to properly review the Board's decision. In the present case, there existsReasons for Decision which provide a thorough

summary of the evidence. The affidavits do not demonstrate that the Reasons areincomplete or show a complete lack of evidence on an essential point. As such, the purposes for which the affidavits were admitted inthe cases relied on by the Employer do not exist in this application for judicial review. I refuse to admit the affidavits. De Minimus Argument

[ 65 ] A considerable portion of the ATA’s arguments related to their position that Ms. Wright’s complaints against it were de minimus and had in any event already been remedied. Ms. Petrach’s affidavit is intended to put Ms. Wright’s complaints into context. Ms. Petrach’s affidavit is limited to matters within her knowledge: correspondence she sent and received and communications she had with Ms. Wright and others. I admitted those portions of Ms. Petrach’s affidavit that related to those matters within her knowledge. Standard of Review [ 66 ] Following Dunsmuir v.

New Brunswick , 2008 SCC 9 and Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , it is clear that decisions from quasi-judicial tribunals will be reviewed on either a correctness or reasonableness basis. Correctness will almost invariably be the standard of review on issues of natural justice while reasonableness will generally be the standard of review of decisions of specialized and knowledgeable tribunals when dealing with questions of fact or law or even law if it in relation to the

interpretation of its “home” statute or statutes. [ 67 ] Here, decisions of the Commissioner have been reviewed on a number of occasions. [ 68 ] The Commissioner’s expertise has already been considered in Qualicare Health Service Corporation v. Alberta (Office of the Information and Privacy Commissioner) , 2006 ABQB 515 , Stubicar v. Alberta (Office of the Information and Privacy Commissioner) , [2008] A.J. No. 1166 (C.A.) , and Penny Lane Entertainment Group v. Alberta (Information and Privacy Commissioner) , 2009 ABQB 140 .

When reasonableness is the appropriate standard of review, the Commissioner should be afforded the highest degree of deference. [ 69 ] Having regard to Lycka v. Alberta (Information and Privacy Commissioner) , [2009] A.J. No. 439 (Q.B.) and Stubicar, I find that the appropriate standard of review on issues of natural justice and procedural fairness is correctness. [ 70 ] And having regard to Penny Lane ( infra ), Edmonton Police Service v.

Alberta (Information and Privacy Commissioner) , 2009 ABQB 593 ) and Stubicar , I am satisfied that the appropriate standard of review for matters other than those relating to natural justice or procedural fairness issues is reasonableness. Having regard to the Commissioner’s expertise, the Commissioner is entitled to a high degree of deference. His decisions on matters relating to the

interpretation of the Personal Information Protection Act , S.A. 2003 c. P-6.5 and the Freedom Of Information and Protection of Privacy Act , RSA 2000, c. F-25, relate to his “home” statutes, and should be reviewed on the reasonableness standard as opposed to the correctness standard, and the Commissioner is entitled to a high degree of deference. ( Stubicar ). Commissioner’s Preliminary Issues on Application 1.

Matters raised for first time on judicial review [ 71 ] As a preliminary matter, the Commissioner objects to much of the ATA’s application on the basis that the ATA is seeking determination of issues that were not before the Commissioner and on which the Commissioner has had no opportunity to consider or decide. In essence, the Commissioner describes the ATA’s application here as an “end run” around the Commissioner. [ 72 ] The Commissioner relies on the Court of Appeal decision in ATA News (which as noted above was recently argued before the Supreme Court of Canada and is presently under reserve).

However, I was advised that those portions of the decision the Commissioner seeks to rely on here were not appealed by him, nor was there a cross-appeal by the ATA on those issues. Thus the Court of Appeal pronouncements on this issue are and will remain the state of the law in Alberta.

[73] At paras. 15 - 17 of ATA News, Watson J.A., speaking for the majority stated: On the other hand, I agree with the appellant that objections to the ability of a tribunal to make a lawful decision should be made firstand in a duly particularized and timely manner to the challenged tribunal: see by analogy as to bias challenges, R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84 (QL), at para. 100. Timely and particularized objection should be donewhatever the objection. The issue therefore is whether that defect in the judicial review process affects what happens now.

Timely objection made to the tribunal can enable the tribunal to remedy the situation (if possible) or to at least provide the tribunal’sview of the circumstances relevant to the objection. Timely objection also encourages the tribunal to provide reasons as to its exercise ofjurisdiction (or not), thereby rendering a decision which can be subjected to judicial review. The benefits for judicial review of havingthe tribunal address objections to its ability to make an effective decision are self-evident.

Timely objections can also be instructive totribunals generally and thus encourage better practices by the tribunals. Recent jurisprudence exemplifies how it would be juridically helpful on judicial review to have the adjudicator’s reasons as to theapplication of s. 50(5) of PIPA to the case where an objection is made under that section: see e.g. “Edmonton Police Service” at paras.36ff; “United Food and Commercial Workers, Local 401” (March 31, 2008, Order P2007-010) at paras. 14ff; Business WatchInternational Inc. v. Alberta (Information and Privacy Commissioner), [2009] A.J.

No. 24 (QL), 2009 ABQB 10, at paras.6 and 27. (Irepeat that I express no opinion on the standard of review selected by the Court of Queen’s Bench in Business Watch International).Beyond this, it is consistent with the legality objective of judicial review that there be reasons to review. And particularly at para. 18: The judicial review was adversely affected by the fact that the adjudicator did not hear and consider the objection. This defect in theprocess is not to be encouraged and should not generally occur.

Not without some reluctance, I would nonetheless not reverse the judicialreview decision here on this ground. [74] In his dissenting reasons, Berger J.A. commented on the same point and stated at paras. 77 and 78: The Appellant has recited a number of factors which I agree were not before the chambers judge and which would normally require andbenefit from an analysis in fact and law by the Commissioner... In my view, the issues are such that the Commissioner should have had an opportunity to interpret the enabling statute and to pronounceupon the alleged loss of jurisdiction.

The Court below and this Court are denied the benefit of the Commissioner’s expertise and analysisrelative to questions of mixed law and fact. It follows that the deference normally accorded to the Commissioner is rendered nugatory,thereby fettering a thorough and meaningful judicial review. [75] Essentially, there is agreement between the majority and the minority on the point of the desirability of issues being raised inthe first instance before the Commissioner and not being raised on appeal for the first time. [76] Those statements do not come out of thin air in ATA News.

Judicial review is a discretionary remedy, and other remediesmust generally be exhausted within the administrative framework before seeking judicial review from the court. [77] In Harelkin v. University of Regina, (SCC), [1979] 2 S.C.R. 561, the Supreme Court of Canada held thatinternal processes should be followed before going to court where the internal remedies would constitute an adequate alternative remedy(and perhaps even a better remedy). [78] In Merchant v. Law Society of Alberta, 2008 ABCA 363, the Court of Appeal stated at para. 32:

To add context, we note that the general rule requiring exhaustion of other remedies before judicial review has a parallel. Judicial review will not be allowed partway through a proceeding, before the final procedures and decision: Greater Moncton Int. Airport Authy. v. Pub. Ser. Alliance of Can. , 2008 FCA 68 , File A125-07 (Feb. 20). From that case and the considerations above, we draw a principle.

Judicial review before completing statutory administrative processes risks fragmentation, delay, expense, and a judicial process which might have been academic. [ 79 ] These cases support the proposition that there should generally not be judicial review on issues that have not been addressed by the tribunal; matters should be raised before the tribunal in the first instance and then reviewed. Otherwise, the jurisdiction and expertise of the tribunal is circumvented. [ 80 ] It is perhaps unnecessary for me to comment on the wisdom of this approach because it is comes out of the Court of Appeal in ATA News .

But it is arguable that their comments are dicta because they decided the case on other grounds, and proceeded to deal with the issues even though they had not been raised before the Commissioner. So in this case, I find this is a principle that I wholeheartedly endorse. It is tempting for the Court to say “oh well, it should have been raised before the tribunal below, but you’re all here and we can deal with the point now rather than send it back”. But that approach would be to endorse inappropriate action and countenance the circumvention of the tribunal’s authority over a matter.

The Courts might be seen to usurp the functions of tribunals created by statute to deal with matters the legislators considered more appropriate to leave with specialized tribunals than with the Courts. Judicial review is a discretionary remedy, and the Courts should exercise restraint before intervening on matters within the jurisdiction of the tribunal that have not yet been dealt with by the tribunal. [ 81 ] As such, there are a several of the issues argued before me that should be dealt with in the first instance by the Commissioner. I will deal with those when discussing the issues themselves. 2.

Mootness [ 82 ] The Commissioner also argued that the remedies of a declaration as to a reasonable apprehension of bias and an order prohibiting the Commissioner from any further dealings on Ms. Wright’s complaints were moot and unnecessary as the Commissioner had already determined that he would not preside over the inquiry, and would delegate any further activities on the matter to someone else in his office.

It was not disputed that he had the staff and the statutory authority to delegate matters to someone else in his office. [ 83 ] It is curious that there is no provision in PIPA similar to that in FOIPPA that allows the Commissioner there to appoint an Adjudicator to hear matters in which the Commissioner is interested or in which he has a conflict ( FOIPPA , ss. 78-81). It would be tempting to read that provision into PIPA , but regard must be had to the apparent intent of the legislature to create such a provision for FOIPPA and not for PIPA .

How a PIPA complaint by a Privacy Commission employee could be dealt with is unclear as is a complaint by or involving someone or some entity the Privacy Commissioner and his office are in conflict with. But those are issues for another day in another matter. [ 84 ] Here, I am satisfied that the Commissioner cannot himself perform an end run around judicial review by simply undertaking not to have any further involvement in the matter.

Sending a matter back on successful judicial review is not an automatic remedy, and in any event, the ATA takes the position that the Commissioner and his entire office should be prohibited from any further involvement in the matter. The Commissioner has not, in any event, conceded that the Decision should be quashed and remitted back. The Commissioner’s position is that the matter should proceed to an inquiry, but that the inquiry will be conducted by someone other than the Commissioner. The question of certiorari is not moot.

It is arguable that prohibition as it relates to the Commissioner himself is, but the ATA does not accept that anyone else from the Commissioner’s office and who reports to the Commissioner should be involved in the matter if it proceeds any further. [ 85 ] What remains to be decided, therefore, is the issue of bias on the part of the Commissioner, the application for prohibition and the application for mandamus regarding the Commissioner’s website. Reasonable Expectations

[ 86 ] The ATA argues that it had reasonable expectations that the Commissioner would ask for submissions from it before making any decisions, and that any decisions would be in writing. [ 87 ] This is an issue that is to be reviewed on the standard of correctness, as it is a procedural fairness or natural justice issue. [ 88 ] If I were to accede to the ATA’s submissions on process, their reasonable expectations and procedural fairness, the Commissioner’s process for dealing with a complaint might look like this: 1. Complaint received; 2. Commissioner reviews complaint; 3.

Commissioner makes decision whether to refer complaint to investigation/dispute resolution process; 4. Commissioner makes decision on whether to extend statutory time lines to complete matter; 5. Commissioner gives reasons as to any extension of time (as per ATA News ); 6. Respondent decides whether to pursue judicial review of decision to extend time; 7. If no judicial review or Courts decide no breach of natural justice or loss of jurisdiction by time extension, Commissioner waits for report from Investigator; 8.

Once Investigator’s report issued, Commissioner to decide what to do about it, whether to proceed and how to proceed; 9. If Commissioner has preserved jurisdiction and investigation/dispute resolution unsuccessful in resolving matter, Commissioner must decide whether to hold a hearing; 10. Commissioner seeks submissions from parties as to whether to hold a hearing; 11. Commissioner issues written decision regarding whether to hold a hearing; 12. If Commissioner decides not to hold a hearing, complainant may seek judicial review; 13.

If Commissioner decides to hold a hearing, respondent may seek judicial review; 14. Subject to results of judicial review, Commissioner will hold a hearing or not; 15. If either party makes preliminary applications before hearing is held, Commissioner must rule on such applications in writing; 16. Parties may seek judicial review of any such preliminary applications; 17. Hearing completed; Commissioner issues written reasons for decision; 18.

Either party considers whether to seek judicial review. [ 89 ] On this theory, a single complaint could give rise to multiple applications for judicial review by the respondent: 1. If the Commissioner decides to extend the time for completing the investigation; 2. If the Commissioner decides to hold a hearing; 3. If the Commissioner rules against the respondent on any preliminary application; and 4. If the respondent is unhappy with the result of the hearing. [ 90 ] The complainant has a similar number of possible judicial reviews:

1. If the Commissioner decides against extending the time; 2. If the Commissioner decides not to hold a hearing; 3. If the Commissioner rules against the complainant on a preliminary application; and 4. If the complainant is unhappy with the result of the hearing. [91] In support of this position, the ATA relies on Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 and the requirement of providing reasons for decision.

I note, however, that the requirements under Bakerare not absolute, and while it is undoubtedly helpful for a tribunal to express reasons for its decisions, it is those decisions that are ofimportance to a party and where there is a statutory right of appeal (at para. 43) that written reasons are essential. [92] As far as the provision of reasons, there is no statutory right of appeal from the Commissioner’s decision. His decision isstated to be final (s. 53). I am sure that for the parties, any decision of the Commissioner is important to them.

But an interim decision,where there is still the opportunity to have the matter heard in full if there is a hearing, has much less importance to the parties than afinal decision. A decision to hold an hearing in the face of arguments that the matter is too trivial to warrant a hearing is of lesserimportance than a decision to not hold a hearing. In the former case, it is difficult to see how the respondent may be prejudiced by anunfavourable ruling, as it will have a full opportunity to deal with the matter on the merits.

There is still the question of the time andexpense in having to prepare for, attend and conduct a hearing, but the respondent’s substantive rights are not prejudiced. [93] Where the Commissioner has decided to not hold a hearing, that ends the matter (subject to judicial review). That decision hasa much more profound impact on the parties’ substantive rights than a decision to hold a hearing. If no hearing is held, the effect is todismiss the complainant’s complaint in a

summary manner. That may well be appropriate in some circumstances, but it deprives thecomplainant of his or her day in court. [94] I agree with the Commissioner’s submissions in this regard (and his practice). I was advised during argument that if theCommissioner decides to not hold a hearing, he gives reasons for his decision. If he decides to hold a hearing, he gives no reasons forthat decision. The former is a final decision, with a significant impact on the parties’s positions.

The latter is an interim decision, with noimpact on the parties’s privacy concerns. [95] I do not see that reasons are generally required to be given in the case of a decision to hold a hearing. There may be specialcircumstances where the giving of reasons may be necessary, although I cannot think of what special circumstances those might be. Theyare certainly not present here. [96] There was no breach of natural justice in regard to the ATA’s reasonable expectations.

Procedural Unfairness Issues [97] Additionally, the ATA complains that the Commissioner failed to provide them with an opportunity to make submissions ontheir applications (treating Ms. Shane’s March 19 letter as an application) and that in failing to ask for submissions, the ATA’sreasonable expectations were thwarted and the Commissioner failed to follow due process. Further, the ATA argues that theCommissioner should have asked the ATA for submissions in response to Ms.

Wright’s March 30, 2010 letter, instead of proceeding toissue the Decision. [98] This is another issue to be reviewed on the basis of correctness. [99] The ATA relies on Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63 as well asother privacy cases under either PIPA or FOIPPA: Decision F2010-D-001 (Edmonton Police Services) and Decision F2010-D-002(Grand Yellowhead School Division No. 35).

[ 100 ] In previous practice bulletins, the Commissioner described a process where submissions would be exchanged between the parties. On October 14, 2009, the Commissioner changed those procedures by advising that it was up to the parties to exchange submissions, and not the responsibility of the Commissioner to manage the process. The ATA submits that this change of procedure resulted in a breach of the audi alteram partem principle. [ 101 ] I do not see that it is in keeping with PIPA for the Commissioner to have to seek submissions from the parties at each step along the way.

The Commissioner should be able to make a decision to investigate without seeking submissions from either party. While he is required to give written notice of a decision to not conduct an inquiry to the complainant (s. 49.1), I see no need under PIPA or in the rules of natural justice to require an opportunity for submissions at that stage.

Again, if the Commissioner must make a decision as to whether to hold a hearing or not, I see no need for him to give the parties an opportunity to make submissions on that point. [ 102 ] I see no general obligation on the Commissioner to give the parties an opportunity to make submissions before the hearing itself. There may be special circumstances where such an opportunity should be afforded, but again, I cannot think what those circumstances might be, and they are not present here. [ 103 ] It also seems clear from Ms. Shane’s letter of March 19 that she did not intend to make further submissions.

She essentially demanded that the Commissioner end the matter immediately as in her words it should have been clear to the Commissioner that he had lost jurisdiction on the delay issue. She did not ask for an opportunity to make further submissions; reading her letter suggests that at least in her mind there was nothing more to say and her position was unanswerable. [ 104 ] It is surprising that the ATA would now take the position that Ms. Shane had a reasonable expectation that the Commissioner would ask for further submissions, and his failure to do so is a denial of the ATA’s procedural rights of fairness.

I see no issue of audi alteram partem arising out of the Commissioner not asking for submissions from the ATA after receipt of Ms. Wright’s letter of March 30. That letter was copied to the ATA. There was nothing stopping Ms. Shane from immediately writing the Commissioner with her comments on Ms. Wright’s letter. [ 105 ] The Commissioner is entitled to make his own rules of procedure, so long as those procedures satisfy PIPA or FOIPA and the rules of natural justice.

I do not see any objection to the Commissioner attempting to streamline procedures and place the responsibility on the parties to manage the submission process. [ 106 ] I find no merit to the ATA’s submission that the failure to request submissions was procedurally unfair, a breach of the ATA’s legitimate expectations, or a breach of audi alteram partem . [ 107 ] The Commissioner made his decision after receipt of the ATA’s submission and Ms. Wright’s response. There was no unfairness in the procedure he adopted to deal with the ATA’s objection.

No Judicial Review from Interlocutory Decisions [ 108 ] I note further that there is a general principle that judicial review of interlocutory decisions should only be permitted in exceptional cases: Robertson v. Edmonton (City) Police Service , 2003 ABCA 279 , Martselos v. Poitras , 2008 FC 1413 at paras. 13 -15 , Bear Hills Charitable Foundation v. Alberta (Gaming and Liquor Commission) , 2008 ABQB 766 , and A.D.M. v. Canadian Institute of Actuaries , 2008 ABQB 552 . [ 109 ] In my view this principle is certainly applicable to matters under PIPA .

It can be seen from a review of PIPA that the Legislature intended that complaints be dealt with expeditiously. The Court of Appeal decision in ATA News is confirmation of that principle. Specifically, a complainant must raise a complaint within 30 days of the matter arising (s. 47). Even the time frame for judicial review is shortened to 45 days by s. 54.1 instead of the standard 6 months under the Rules of Court (R 3.15(2, unchanged from the

previous Rules of Court). [ 110 ] In the context of these time frames, it is inconsistent to think that the Legislature intended that there be multiple opportunities for judicial review along the way, especially for interlocutory matters. [ 111 ] Verville J. considered this principle in Alberta (Employment and Immigration) v. Alberta Federation of Labour (No. 1) , 2009 ABCA 344 , and in that case found that there were exceptional circumstances there warranting judicial intervention notwithstanding that the decision reviewed was interlocutory.

Fettering discretion [ 112 ] The ATA argued that the Commissioner fettered his discretion to screen complaints pursuant to ss. 36(2)(e), 49 and 50(1) of PIPA by automatically referring an unresolved complaint to a hearing, by directing that a de minimus complaint be referred to a hearing, and by directing a hearing into a complaint raised outside the timeline for requesting a review pursuant to s. 47(2) of PIPA. [ 113 ] This is again a natural justice issue, requiring a review on the basis of correctness. [ 114 ] There is no evidence before me that the Commissioner fettered his discretion on any of these bases.

Relying on cases under FOIPPA is of no assistance to the ATA. There are different provisions in that Act. Under FOIPPA , if the matter has not been resolve at the mediation stage, the Commissioner must hold a hearing : 68 The Commissioner may authorize a mediator to investigate and try to settle any matter that is the subject of a request for a review. 69

(1) Unless

section 70 applies, if a matter is not settled under

section 68, the Commissioner must conduct an inquiry and may decide all questions of fact and law arising in the course of the inquiry. 70 The Commissioner may refuse to conduct an inquiry pursuant to

section 69 if in the opinion of the Commissioner (

a) the subject-matter of a request for a review under

section 65 has been dealt with in an order or investigation report of the Commissioner, or (

b) the circumstances warrant refusing to conduct an inquiry. [ 115 ] It seems clear that the default position under FOIPPA is that there must be an inquiry. The Commissioner has a discretion to not hold an inquiry and an exercise of such discretion would surely have to be explained because the Commissioner would essentially be making a final decision. [ 116 ] Under PIPA , the Commissioner has a discretion to hold a hearing or not. There is no presumption that there be a hearing: 50

(1) If a matter under review or relating to a complaint (

a) is not referred to mediation,

(

b) is not settled pursuant to mediation under

section 49, (

c) is not resolved, or (

d) is not the subject of a notice under

section 49.1(2). the Commissioner may conduct an inquiry and decide all questions of fact and law arising in the course of the inquiry. [117] I do not characterize a decision to hold a hearing as being in the same category as a decision to not hold a hearing. The formercontinues the process; the latter is the end of the process and disposes of it.

In my view, it is an unnecessary burden to impose anobligation on the Commissioner to give reasons for his decision to hold a hearing, let alone to seek submissions from the parties as towhether he should hold a hearing and then issue a decision that would comply with Baker. [118] The Commissioner of course must deal with any applications that are made to him. But he does not have to invite applications.And he does not have to raise issues on his own. The ATA’s position with respect to the Commissioner’s failure to decide to not hold ahearing based on Ms.

Wright’s complaints being out of time has an element of lying in the weeds to it. The ATA was familiar with thecomplaints, having been involved directly with Ms. Wright when the privacy concern arose, and was certainly aware of the time thatoccurred. It was then aware that she proceeded through the ATA’s appeal process on the qualification issue, and the timing of thoseprocesses. It was then aware that Ms. Wright was unsuccessful and obviously knew when she had been unsuccessful. It went through aprocess concerning the complaints with Ms. Clayton. It then knew that Ms. Wright was not satisfied with Ms.

Clayton’s report and hadrequested that there be a hearing. And the ATA was aware in June, 2009 that the Commissioner was considering whether or not to hold ahearing. The ATA followed up on the status of the Commissioner’s decision in the fall of 2009. Yet with full knowledge of all of this, theATA raised no issue with the Commissioner about the timeliness of Ms. Wright’s complaints.

The first time they did so was followingthe Commissioner’s notification on March 10 of his decision to hold a hearing. [119] They then argued that the Commissioner fettered his discretion by not refusing to hold a hearing on the basis of this unraisedargument about timeliness.

If the ATA had concerns about that issue, the issue should have been raised by them at the earliest reasonableopportunity, and certainly before the Commissioner wrote on June, 2009 advising that he was considering whether to hold a hearing,rather than waiting for 9 months. [120] The ATA’s written argument on this issue has no merit and in my view should never have been raised in these proceedings. Irecognize that the ATA withdrew this argument as a basis for certiorari, but that was only during argument.

But the issue needs to bereferenced in this decision to put the rest of the ATA’s arguments on the Commissioner fettering his discretion into context. [121] The ATA also argues that the Commissioner fettered his discretion as there was no reasonable basis for him to decide to hold ahearing because of the de minimus nature of Ms. Wright’s complaints. [122] There is no doubt that wherever there is a discretionary power, discretion must be brought to bear on every case, and that eachcase must be considered on its own merits: Northeast Bottle Depot Ltd. v.

Alberta (Beverage Container Management Board), 2000ABQB 572 at para. 61, Maple Lodge Farms Ltd. v. Canada, (SCC), [1982] 2 S.C.R. 2, Wimpey Western Ltd. v.Alberta, (1982), (AB KB), 37 A.R. 303. [123] The ATA argues that the Commissioner’s statement in Decision F2010-D-002 as to a “screening function” under s. 70 ofFOIPPA demonstrates that the Commissioner is of the view that he must conduct an inquiry if the matter is not settled at the initialinvestigation/mediation stage.

That argument ignores the differences between FOIPPA and PIPA and is unsupported. [124] The reference to the 2006-2007 Annual Report of the Commissioner where it was stated “(i)n those cases where mediation isnot successful or mediation is not authorized, the matter moves to inquiry” is not persuasive to show that the Commissioner does notunderstand the difference between his role under PIPA from that under FOIPPA. The Edmonton Police Service (F2006-031) (September22, 2008) and University of Alberta (F2004-027) orders were under FOIPPA and not PIPA and are of no assistance to the ATA in thiscase.

[ 125 ] The ATA also argues that the Commissioner has fettered his discretion or failed to exercise his discretion properly because he did not review the report of the Investigator (here, Ms. Clayton). The Commissioner notes that the investigation process and mediation processes are in the nature of settlement proceedings and therefore without prejudice, and he considers that it would be inappropriate for him to review the report or materials before the Investigator.

The Investigator will potentially have received information from both parties that they gave as part of an attempt to compromise, and the Commissioner’s perspective is that he should not be looking at those materials or a report based on those materials. [ 126 ] This practice is described in the University of Alberta Order F-2004-27, and would be equally applicable to his practices under PIPA . [ 127 ] I agree with the Commissioner’s position. When an investigator is appointed, the investigator attempts to negotiate or mediate a settlement between the parties.

If the process does not resolve the complaint, it would generally be inappropriate for the Commissioner to review the Investigator’s process or materials before the Investigator, or the Investigator’s report based on such materials. It is not relevant why the investigation or mediation failed to resolve the matter, or how far either party was prepared to go to resolve the matter.

The Commissioner is entitled to (if not obliged to) look at the matter afresh if he is going to properly exercise a discretion without considering materials that are settlement oriented. [ 128 ] The ATA argues that “if a person wants an inquiry, the Commissioner will conduct one”. There is no basis for that statement to be made. There is nothing in the materials before me, or in the cases or orders put before me, suggesting that the Commissioner has fettered his discretion in any manner. [ 129 ] This ground of objection is unfounded.

Even if it had some merit, when the supposed fettering of discretion is to hold a hearing (which is in itself an interlocutory decision because it does not resolve the matter) there should be no judicial review absent exceptional circumstances. The complainant may be able to challenge a decision to not hold an inquiry; the respondent (absent exceptional circumstances) will have to go through the inquiry and challenge the proceedings at the end. [ 130 ] There was no breach of natural justice by the Commissioner in this regard.

Exceptional Circumstances [ 131 ] Are there any exceptional circumstances here that would warrant allowing judicial review of the Commissioner’s interlocutory decision to hold a hearing into Ms. Wright’s complaint? [ 132 ] I have found that there is no merit to the ATA’s argument that the Commissioner fettered his discretion; I have also found that there is no merit to the ATA’s arguments that the Commissioner breached obligations of procedural fairness, failed to meet the ATA’s reasonable expectations and offended the audi alteram partem rule. [ 133 ] That leaves the question of bias.

If a reasonable apprehension of bias is made out, that would, in my view, be an exceptional circumstance that would warrant judicial review at an early stage of the proceedings. Otherwise, the hearing would have to consider under the unresolved shadow of allegations of bias. If bias were ultimately found, that would result in a waste of the time and resources invested in the tainted proceeding. Judicial economy and fairness require that bias issues be raised (and resolved) at an early stage of any proceedings.

Bias [ 134 ] The Commissioner was obviously unhappy with the Alberta Court of Appeal’s decision in ATA News . The decision had consequences for a number of matters before the Commissioner. The Commissioner’s response, in addition to seeking leave to appeal the

decision to the Supreme Court of Canada, was to issue a news release commenting on the decision: “ Commissioner Work expresses Grave Concern over recent Court of Appeal Ruling ”. [ 135 ] The news release contained comments such as “(t)he consequences of this decision are really bad for Albertans and for the Office of the Information and Privacy Commissioner”; “organizations subject to the Act will have ample opportunity to delay and defeat complaints based on this order”; “one is left wondering whose interests are being protected.” [ 136 ] The message conveyed was one of disdain and disapproval for “organizations subject to the Act” using technical arguments to defeat valid complaints.

The Commissioner is undoubtedly entitled to have opinions and to express fair comment on judicial decisions. In doing so, however, he must be careful not to prejudge, or give the impression of prejudging matters before him or which might come before him. [ 137 ] The Commissioner’s comments in the Decision echoed the comments in his news release. The Decision was in response to the ATA’s challenge to his continued jurisdiction to deal with Ms. Wright’s complaints because of delays argued by the ATA to be similar to those in the ATA News.

His comments at the end of the Decision were obiter and unnecessary, as they had nothing to do with the Decision itself. I do not accept the

interpretation argued by counsel for the Commissioner that the Commissioner was not referring specifically to the ATA in those comments.

It defies credibility to suggest that, having specifically noted in para. 13 that the ATA had not indicated how it might be prejudiced if the inquiry were to proceed, his references to “organizations, even private ones” and organizations who “selectively rely on the timing provisions of the Act”, his comments would not be interpreted as referring to the party in the Decision, the ATA. [ 138 ] The clear implication from the Decision and the concluding comments is that the Commissioner considered that the ATA was being disingenuous in its position on delay. “Disingenuous” is not a term that can be misconstrued.

Its plain meaning, and its dictionary meaning, implies dishonesty at worst and a lack of candour at best. Neither characterization is remotely appropriate in the context of the ATA’s objection to the Commissioner’s continued jurisdiction with respect to Ms. Wright’s complaints. [ 139 ] I do not accept the ATA’s submission that the Commissioner demonstrated bias by criticizing the tone of Ms. Shane’s March 19, 2010 letter. Ms. Wright wrote to the Commissioner on March 30, 2010, and described Ms. Shane’s letter as “presumptuous” and disrespectful.

In his concluding comments, the Commissioner stated at para. 14 that the letter was not “appropriately respectful”. His comments (and Ms. Wright’

s) regarding the tone of Ms. Shane’s letter were not unreasonable. I recognize that Ms. Shane is not a lawyer and should not be held to standards of conduct applicable to lawyers regarding demeanor. Nevertheless, Ms. Shane is not a stranger to proceedings before the Commissioner. She has dealt with all of the complaints about the ATA’s collection, use and disclosure of personal information under PIPA since August, 2005. Her March 19 letter states “you should have already come to the conclusion that you have no more power to continue with the inquiry and should so notify the parties”.

It concluded “(k)indly confirm to the parties at your very earliest opportunity that the inquiry is hereby terminated”. [ 140 ] I can understand how Ms. Wright and the Commissioner would find Ms. Shane’s letter to be presumptuous and disrespectful. The Commissioner displayed no bias when he essentially called a spade a spade. A party cannot complain that the trier of fact is biased and can no longer hear the case if the trier of fact makes an uncomplimentary but justifiable comment about the party’s demeanour.

Appropriate admonishments can be made without affecting the impartiality of the trier of fact. [ 141 ] This aspect of the ATA’s complaints about bias on the part of the Commissioner is without merit. [ 142 ] The ATA cites a number of cases on bias, all of which support the following basic principles: 1. The duty of impartiality is part of the principles of administrative justice. 2. Parties are entitled to have their matter decided by an impartial tribunal. 3. The burden of proof is on the party alleging a real or apprehended breach of this duty by establishing actual bias or a reasonable apprehension of bias. 4.

If bias or a reasonable apprehension of bias is shown, the entire process is tainted.

[143] The test for a reasonable apprehension of bias has been set out in the dissenting reasons of de Grandpre J. in Committee forJustice and Liberty v. Canada (National Energy Board), (SCC), [1978] 1 S.C.R. 369 at 394: .. .the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the questionand obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person,viewing the matter realistically and practically -- and having thought the matter through -- conclude.

Would he think that it is more likelythan not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly. [144] Having regard to the case law on reasonable apprehension of bias, the unjustified concluding comments in the Decision clearlygive rise to an apprehension of bias on the part of the Commissioner against the ATA. I cannot see how the Commissioner can crediblycontinue to be involved in Ms. Wright’s matters having expressed those comments.

I make no finding of actual bias, but the ATA hascertainly made out its case for a reasonable apprehension of bias. [145] How this finding might affect other matters involving the ATA and which are or might come before the Commissioner is notbefore me.

Any concerns by the ATA will have to be dealt with in as matters arise, and having regard to the imperatives in ATA News,should be dealt with before the Commissioner in the first instance so that he has an opportunity to address any objections that might beraised. [146] The first result of this finding is that the decision of the Commissioner to hold an inquiry must be quashed. The requestedremedy of certiorari is appropriate, and is granted. Remedy for Certiorari [147] Frequently, when a decision from a quasi-judicial tribunal is quashed on certiorari, it is remitted back to the tribunal.

But isthat appropriate here? The ATA argues that the Court should exercise a discretion to simply quash the decision, and not remit it becausefirstly, Ms. Wright’s complaints are too trivial to warrant further consideration, and secondly, it is obvious that Ms. Wright’s complaintsare out of time. [148] The issue of de minimus and whether the matter should proceed to an inquiry must be determined in the first instance by theCommissioner or his designate.

It is not appropriate for the Court to make a determination as to de minimus because that would usurp thefunction of the Commissioner. [149] Timeliness of the complaint is a matter that also should be dealt with in the first instance using the expertise and experience ofthe Commissioner or his office.

Although not raised by the ATA before the Commissioner, this is something that might be addressed onthe rehearing or reconsideration of the matter. [150] There is no basis in the ATA’s arguments or materials for me to conclude that the entire staff in the Commissioner’s office istainted with a reasonable apprehension of bias because some have, for example, followed previous decisions of the Commissioner, orthat some have followed decisions that have been subsequently overturned.

And in any event, this issue should be raised beforewhomever is delegated the task of rehearing the issue as to whether there should be an inquiry. [151] Both the Commissioner and the ATA cite Alberta (Employment and Immigration) v. Alberta Federation of Labour (No. 2),2009 ABQB 544 relating to the issue of remitting the matter back. There, Verville J. directed that the matter be remitted to a differentadjudicator (there having been an adjudicator appointed in that FOIPPA matter) because of a “suspicion of bias”.

As to that case, theCommissioner sought to have the matter remitted to the same adjudicator who had made the quashed decision. The Public Body wanteda new adjudicator because of concerns of bias.

[ 152 ] I see that decision differently from the case at bar. Here, the Commissioner suggested at the hearing that he would remit the matter to a different person. On the materials and submissions before me, I am not satisfied that there is a “suspicion” of bias tainting the entire Commissioner’s office. That is an issue that would have to be raised when and if the Commissioner delegates the matter to someone in his office. [ 153 ] PIPA is silent on the issue as to how inquiries might proceed where the Commissioner (and his entire office) may be in potential conflict.

Under s. 79 of FOIPPA , the Minister responsible decides whether to appoint an adjudicator, and selects the adjudicator. Despite being urged by the ATA to read such a provision into P IPA , I do not consider that I have the jurisdiction to do so. The appropriate remedies must be found in PIPA itself. [ 154 ] S. 43 provides: 43(1) The Commissioner

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