University of Alberta v. Alberta (Information and Privacy Commissioner), 2011 ABQB 486

Court of Queen ’ s Bench of Alberta Citation: University of Alberta v. Alberta (Information and Privacy Commissioner), 2011 ABQB 486 Date: 20110727 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 ] The Association of Academic Staff of the University of Alberta (ASSUA) and the Governors of the University of Alberta (U of

A) disagree on the proposed form of the Order following the June 21, 2011 decision ( 2011 ABQB 389 ) granting ASSUA intervenor status. [ 2 ] ASSUA proposes the following wording: – The Association of Academic Staff of the University of Alberta may file an affidavit including the entire Faculty Agreement. [ 3 ] The U of A proposes the following: – The Association of Academic Staff of the University of Alberta is limited to the record before the Court, but it may file an affidavit for the purposes of exhibiting the entire Faculty Agreement. [ 4 ] My June 21, 2011 decision reads on this point: – 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 [footnote omitted], 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. ... 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. (Emphasis added) [ 5 ] While ASSUA's version of the contested paragraph of the Order contains the actual wording from paragraph 28 of the decision, it is clear from the entire context of paras. 20-22 and 28, that the U of A's version of the Order reflects the intention of my decision.

ASSUA's suggestion that the Affidavit should not be limited to attaching the Faculty Agreement is inconsistent with my decision. [ 6 ] This is a judicial review. A judicial review is generally limited to the record before the tribunal under review. The use of the word "including" in para. 28 was not intended to broaden the scope of what may be included in the Affidavit, but to simply indicate that an affidavit could be filed with the entire Faculty Agreement, as noted in para. 21.

The oral and written submissions by ASSUA may deal with the unique issues about which ASSUA says it has special expertise and insight, but that was not an invitation to create an additional record beyond what was before the Commissioner. Heard on the 1 st day of February, 2011. Written Submissions Received the 25 th day of July, 2011. Dated at the City of Edmonton, Alberta this 27 th day of July, 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