University of Alberta v. Alberta (Information and Privacy Commissioner), 2011 ABQB 389

Court of Queen ’ s Bench of Alberta Citation: University of Alberta v. Alberta (Information and Privacy Commissioner), 2011 ABQB 389 Date: 20110621 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 _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] An adjudicator (the Adjudicator) delegated by the Respondent Information and Privacy Commissioner conducted an inquiry into whether the University of Alberta responded appropriately to a request for records by the Respondent, Dr. Oleynik under the Freedom of Information and Protection of Privacy Act , RSA 2000, c F-25 ( FOIPPA ).

The Adjudicator released her decision (Order F2009-1023) and two applications for judicial review of this decision were brought, Action #1003 05907, an application by the Governors of the University of Alberta (U of

A) and Action #1003 08133, an application by the Association of Academic Staff University of Alberta (AASUA). [ 2 ] In February, I ordered that the two judicial review applications be heard concurrently, and that ASSUA’s judicial review would proceed first, immediately followed by ASSUA’s Intervener’s Application in the U of A’s judicial review. U of A’s application would then follow. [ 3 ] I heard ASSUA’s judicial review application and intervenor application on April 13 and reserved my decision on both. These are my reasons on the intervenor application.

The issue of whether the Social Sciences and Humanities Research Council Selection Committee (SSHRC) should be notified of the judicial review applications was also raised by Dr. Oleynik and will be addressed herein. Facts The Records Request [ 4 ] 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. [ 5 ] 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 [ 6 ] 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)?” [ 7 ] 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, and read: 1. Is the mandate of the University of Alberta different from that of Wilfrid Laurier University such that Order PO-2936 can be distinguished? 2. Does the University of Alberta Faculty Agreement preclude or contemplate participation as a member of the SSHRC committee? 3.

If the mandate of the University of Alberta is similar to that of Wilfrid Laurier University, and/or the University of Alberta Faculty Agreement contemplates participation as a member of the SSHRC committee, would this mean that the University of Alberta has custody or control under the Act of emails on its server created as part of a committee member’s role on the SSHR committee. [ 8 ] In its judicial review application, ASSUA argued that the Adjudicator breached the principles of natural justice and the duty to be fair, when she failed to conclude that, as a party to the Faculty Agreement, it was an “affected party” and did not give it notice of the request for review under s. 67 of FOIPPA .

It argues that it has a different

interpretation of the Faculty Agreement than the University and that it should have had an opportunity to present its arguments regarding that

interpretation. Its intervenor application in the University’s judicial review is based on the same position. The Adjudicator’s Decision [ 9 ] 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. Relevant Procedural History [ 10 ] 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.

Analysis The Relevant Rules of Court [ 11 ] In its intervenor application, AASUA filed a Brief in August 2010, which relied on the old Rules ( Alta. Reg. 390/1968 ). It was seeking either party or intervenor status; it now seeks only intervenor status. By the time the application was heard, the new Rules ( Alta. Reg. 124/2010 ) had come into effect, and both the University and Dr. Oleynik withdrew their opposition to intervention.

I, therefore, do not intend to deal with the application under R. 753.10 and R. 38(3) dealing with adding parties, or with the new Rules 3.17 or 3.75 dealing with adding parties. [ 12 ] The lack of opposition to the intervenor application however is not determinative, and the Court still has the discretion to grant or refuse the application. [ 13 ] The old Rules did not expressly provide for intervenor status, and before the new Rules common law principles were applied ( Ahyasou v. Lund, 1998 ABQB 875 ; see also Morrow v. Zhang, 2008 ABCA 192 ; Telus Communications Inc. v.

Telecommunications Workers Union, 2006 ABCA 297 ). Under the new Rules, Rule 2.10 does so: 2.10 On application, a Court may grant status to a person to intervene in an action subject to any terms and conditions and with the rights and privileges specified by the Court. Common Law Principles [ 14 ] There is nothing in the language of the rule that suggests that the common law principles that have developed in regards to intervenor status are not applicable. Wittmann C.J. recently discussed the law regarding intervenor applications in R. v.

Hirsekorn, 2011 ABQB 156 , and set out the following general common law principles: 1. An intervention may be allowed where the proposed intervenor is specially affected by the decision facing the Court or the proposed intervenor has some special expertise or insight to bring to bear on the issues facing the court (Papaschase Indian Band v. Canada (Attorney General ), 2005 ABCA 320 at para. 2 ); 2. An Intervenor in an appellate court must take the case as she finds it and cannot, to the prejudice of the parties, argue new issues which require the introduction of fresh evidence ( Batchewana Indian Band v.

Canada (Minister of Indian and Northern Affairs (1996), 199 N.R. 1 (F.C.A.) (at para. 2 )); 3. Intervenor status may also be granted where the proposed Intervenor's interest in the proceedings may not be fully protected or argued by a party ( United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City) ), 2002 ABCA 243 (at para. 2 )) . 4. The Court should take a two-step approach to determine an Intervenor application: first determine the subject matter of the proceeding, and second determine the proposed Intervenor's interest in the subject matter ( Papaschase at para. 5) .

Should ASSUA be Granted Intervenor Status?

[ 15 ] ASSUA asserts that determining whether the emails sought were within the custody and control of the U of A, requires an analysis of the true nature of the emails within the context of the relationship between the U of A and the staff association. It further states that the Adjudicator failed to consider Universities’ customary practices, the unique characteristics of the University-academic employment relationship, the effect academic freedom has on that relationship and documents created by faculty members, and the unique nature of committee work.

It further notes that it can provide background and unique evidence on “the Faculty Agreement, the true nature of the documents and the conditions of their creation, transmission and storage and nature of the relationship between the University and the Academic staff”. [ 16 ] Lefsrud J in Smyth v. Edmonton (City) Police Service, 2005 ABQB 652 discussed the two part test to be applied in an intervenor application, and noted (at paras. 15-16): To determine whether a party should be permitted to intervene, the Court must apply a two step process. ( Ahyasou v. Lund , [1998] A.J.

No. 1154 (Q.B.) referred to with approval by the Court of Appeal in the Alberta (Minister of Justice) v. Métis Settlements Appeal Tribunal [2005] A.J. No. 362, 2005 ABCA 143 ). The first step is to characterize the subject matter of the proceedings, and the second step is to determine what interest, if any, the proposed intervenor has in it. The Alberta Court of Appeal in the Metis Settlements endorsed the following three grounds for determining whether the proposed intervenor has sufficient interest in the subject matter.

Those grounds are whether the Applicant: 1. will be specially affected by the decision facing the Court; 2. has some special expertise or insight to bring to bear on the issues facing the Court, or 3. has interests that may not be fully protected by the parties. [ 17 ] At the first step, the subject matter of the proceedings is whether the Adjudicator erred in her determination that the University of Alberta had custody and control of the emails in question. Part of her analysis, included

interpretation of the Faculty Agreement between ASSUA and the University. [ 18 ] As to the second step, in my opinion, whether AASUA is specially affected by the decision facing the Court, or has any interest that will not be fully protected by the parties to the application, raises many of the same issues as its judicial review of the Adjudicator’s decision. However, ASSUA does have some expertise and insight that may be helpful to the Court.

ASSUA’s submissions on its expertise and insight as to the University-academic employment relationship, the effect academic freedom has on that relationship and documents created by faculty members, and the unique nature of committee work brings a different perspective than that of the U of A as employer, and thus may be of assistance to the Court. [ 19 ] In my view, it is preferable to grant ASSUA intervenor status on that basis, rather than to engage in a premature analysis of whether ASSUA’s rights or interests under the Faculty Agreement are affected by the Adjudicator’s decision.

I therefore grant ASSUA intervenor status on the basis that it can bring an important and different perspective to the Court on the University-academic employment relationship, the effect academic freedom has on that relationship and documents created by faculty members, and the unique nature of committee work.

Should There be Conditions on the Intervenor? [ 20 ] The University of Alberta proposed that if ASSUA’s intervention application was granted, it should be subject to the condition that its written and oral submissions be limited to the issue of whether the Faculty Agreement “precludes or contemplates participation as a member of the SSHRC committee?” ASSUA objects to any limitations on its intervention. [ 21 ] This is a judicial review and, subject to very limited exceptions [1] , the Court is limited to the record before the tribunal whose decision is under review.

Thus, by the very nature of the proceeding, ASSUA is already limited to the record. However, there was some suggestion in oral argument that the entire Faculty Agreement was not before the Adjudicator. ASSUA may file an additional affidavit

that includes the entire Faculty Agreement, if it is of the opinion that it is necessary to the Court’s determination of whether the Agreement was reasonably or correctly interpreted (I make no finding on standard of review at this point). [ 22 ] As to its submissions, both oral and written, ASSUA must be limited to the issue that they have expressly indicated gives rise to their concerns about the decision – the Adjudicator’s

interpretation of the Faculty Agreement, and to its expertise and insight as to the University-academic employment relationship, the effect academic freedom has on that relationship and documents created by faculty members, and the unique nature of committee work. Should SSHRC be Involved? [ 23 ] Dr. Oleynik argued that if ASSUA is granted intervenor status, SSHRC should as well. In particular, he appeared to argue that this would be more fair, since without its participation the evidence will be incomplete.

He argues that emails between SSHRC and the University of Alberta after his FOIPPA application are relevant to the Court’s determination. Further, he argues that the “loop-hole” between the Federal and Provincial regime, can be best addressed by having SSHRC included. [ 24 ] ASSUA takes no position on this; the University is concerned that this would unduly complicate and slow down the proceedings. [ 25 ] As noted by counsel for the University of Alberta, this Court has no authority to compel SSHRC to participate; nor would I be inclined to do so if I had the jurisdiction.

SSHRC was aware of the FOIPPA application; it did not participate. As far as the parties know, it did not follow up to inquire about whether there was a judicial review. [ 26 ] Nor am I inclined to order that it be given notice of the judicial review. This matter has been ongoing for some time, and if any of the parties thought that participation by SSHRC could be relevant, they could have advised it of the judicial review and asked if it cared to participate. No one has done so to date.

There is no reason to delay the University’s application any longer. [ 27 ] I note again that judicial review is a particular kind of litigation. It is on the record before the tribunal. Evidence of things that occurred after the Adjudicator’s decision (subject to questions of bias or breach of natural justice by the Adjudicator) are not relevant or admissible. Therefore, even if SSHRC was given notice of the application, and chose to seek intervenor status, the evidence Dr. Oleynik thinks is relevant, would not be before the Court. Conclusion [ 28 ] AASUA’s application for intervener status is granted.

AASUA will not be permitted to raise any new issues as an intervener, but it may file an affidavit including the entire Faculty Agreement. Its submissions will be limited to the

interpretation of the Faculty Agreement and its expertise and insight as to the University-academic employment relationship, the effect academic freedom has on that relationship and documents created by faculty members, and the unique nature of committee work. [ 29 ] No order will be made in relation to SSHRC. Heard on the 13 th day of April, 2011.

Dated at Edmonton, Alberta this 21 st day of June, 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 [1] The exceptions are allegation of bias or breach of natural justice, or where the record of the proceeding before the Board is inadequate because it does not actually reflect the evidence before the tribunal ( Dodd v. Alberta (Registrar of Motor Vehicle Services) , 2010 ABQB 184 (at paras. 16-18 ).