University of Alberta v. Alberta (Information and Privacy Commissioner), 2012 ABQB 247

Court of Queen ’ s Bench of Alberta Citation: University of Alberta v. Alberta (Information and Privacy Commissioner), 2012 ABQB 247 Date: 20120416 Docket: 1003 05907 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: 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) _______________________________________________________ Reasons for Judgment on Judicial Review Brought by U of A of the

Honourable Mr. Justice Donald Lee _______________________________________________________ I Introduction.................................................................................................................. Page: 2 II Facts............................................................................................................................ Page: 3 a. Background Procedural Facts........................................................................... Page: 3 b. The Records Request....................................................................................... Page: 4 c.

The Inquiry....................................................................................................... Page: 4 III The Adjudicator’s Decision........................................................................................... Page: 5 IV Standard of review....................................................................................................... Page: 9 V The Legislation...........................................................................................................

Page: 15 VI The Parties’ Positions................................................................................................. Page: 16 a. The U of A..................................................................................................... Page: 16 i. Custody or control ............................................................................ Page: 16 b. Dr. Oleynik.................................................................................................... Page: 18 i. General submissions........................................................................... Page: 18 ii.

Custody or control ............................................................................ Page: 19 c. AASUA......................................................................................................... Page: 20 VII Analysis..................................................................................................................... Page: 22 a. Purpose of FOIPPA....................................................................................... Page: 23 b. SSHRC......................................................................................................... Page: 24 c.

The Relevant Factors...................................................................................... Page: 25 d. Dr. Oleynik’s Argument.................................................................................. Page: 29 VIII Conclusion................................................................................................................. Page: 29 I Introduction

[ 1 ] This case is about whether emails sent or received by a University of Alberta professor in regards to his voluntary participation in a peer-review grant process under a Federal government program are in the “ custody or control ” of the University for the purposes of the provincial freedom of information legislation. [ 2 ] The University of Alberta (U of

A) seeks judicial review of a decision (the Decision) by an adjudicator (the Adjudicator) delegated by the Respondent Information and Privacy Commissioner (the Commissioner) in regards to a records request by the Respondent, Dr. Oleynik, to the U of A under the Freedom of Information and Protection of Privacy Act , RSA 2000, c. F25 ( FOIPPA ). In the course of concluding that the records in question were in the custody or control of the U of A, the Adjudicator asked the parties to provide the Faculty Agreement between the U of A and Association of Academic Staff University of Alberta (AASUA), and answer questions in regards to its

interpretation. AASUA sought and was granted intervener status in this judicial review. It also brought its own judicial review application, asserting that the Adjudicator should have provided it notice of the hearing and provided it with an opportunity to make submissions in regards to the Faculty Agreement. Reasons in that judicial review are released concurrently with this decision dealing with the merits of the Decision. II Facts a. Background Procedural Facts [ 3 ] The Adjudicator conducted an inquiry into whether the U of A responded appropriately to a request for records by Dr. Oleynik.

She released her decision (Order F2009-1023) and two applications for judicial review of this decision were brought, Action #1003 05907, an application by the U of A, and Action #1003 08133, an application by AASUA. AASUA also applied for intervener status in Action #1003 05907. [ 4 ] The Commissioner and the U of A applied to strike AASUA ’ s Originating Notice in Action #1003 08133; 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. (Emphasis added) [ 5 ] In February, I ordered that the two judicial review applications be heard concurrently, and that AASUA ’ s judicial review would proceed first, immediately followed by AASUA ’ s Intervener ’ s Application in the U of A ’ s judicial review. U of A ’ s application would then follow. [ 6 ] I heard AASUA ’ s judicial review application and intervener application on April 13 and reserved my decision on both.

I granted AASUA ’ s intervener application: 2011 ABQB 389 . The University of Alberta ’ s judicial review was heard on November 16 and 17. Reasons for both are being issued at the same time. [ 7 ] Following the hearing the parties provided additional submissions on two occasions, once to address a recent decision of the Ontario Information and Privacy Commissioner: Final Order PO-3009-F; University of Ottawa ( U of O, Final Order ) and then to address two recent decisions by the Supreme Court of Canada, Alberta (Information and Privacy Commissioner) v.

Alberta Teachers Association ( ATA ) , 2011 SCC 61 and Nurses' Union v. Newfoundland Labrador (Treasury Board) ( Nurses ’ Union ), 2011 SCC 62 .

b. The Records Request [ 8 ] 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. [ 9 ] 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. c. The Inquiry [ 10 ] 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)? ” [ 11 ] The parties to the Inquiry were the University and Dr. Oleynik, and was conducted through written submissions, including submissions in response to the Notice of Inquiry and affidavits from University officials and employees, including Dr. Szostak. [ 12 ] 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, Wilfred Laurier University , PO-2836 (WLU) and University of Ottawa , PO-2842 ( U of O, PO-2842 ) 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.

III The Adjudicator ’ s Decision [ 13 ] 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 provided that information in the course of the Inquiry, the Adjudicator did not order the University to provide any further information to Dr.

Oleynik. [ 14 ] The Adjudicator ’ s analysis first noted that FOIPPA does not define “ custody ” or “ control ” , but that previous decisions had noted that custody referred to physical possession, while control referred to the authority of a public body to manage what is done with the record. She then set out ten factors, drawn from previous decisions (at para. 32): 1. Was the record created by an officer or employee of the public body? 2. What use did the creator intend to make of the record? 3.

Does the public body have possession of the record either because it has been voluntarily provided by the creator or pursuant to a mandatory statutory or employment requirement? 4. If the public body does not have possession of the record, is it being held by an officer or employee of the public body for the purposes of his or her duties as an officer or employee? 5. Does the public body have a right to possession of the record? 6. Does the content of the record relate to the public body's mandate and functions? 7. Does the public body have the authority to regulate the record's use? 8.

To what extent has the record been relied upon by the public body? [ 15 ] The Adjudicator then noted that two decisions from the Ontario Privacy Commissioner ’ s office, WLU and U of O, PO-2842 , dealt with whether records created or received by academic staff members in relation to participation in SSHRC committee work were in the custody or control of the respective universities.

In particular, the Adjudicator relied on the WLU decision, noting that the adjudicator there concluded that bare possession did not amount to custody, and that custody implied “ some right or obligation to hold the information in one ’ s possession ” . The Adjudicator adopted the test set out in WLU , suggesting that two primary factors could be drawn from the list of factors earlier referred to. Those two factors were: 1. Did the University have some right to possess the record, and 2.

Does the University have some responsibility for the care and protection of potentially responsive records? [ 16 ] In relation to the first question, the adjudicator in WLU considered whether service on the SSHRC committee fell within the core function or mandate of the university, concluding that records created for the SSHRC committee were created as part of the creator ’ s duties to the University, and that therefore the University as employer had some right to possess the record.

In relation to the second question, the adjudicator held that since the records were located on a University server and that there was no evidence that responsive records would be kept apart from other records, the University had some responsibility for the care and protection of the records. [ 17 ] The Adjudicator applied these factors to the University, and in answering the first question, looked to both the Faculty Agreement and the University ’ s mandate. Art. 7.02 of the Faculty Agreement provides that staff members ’ responsibilities include:

(

c) provision of service to the discipline of the staff member; participation in the governance of the University, the Faculty, and the Department; and dissemination of knowledge to the general public by making available the staff members expertise and knowledge of the discipline all of which shall be carried out according to the standards of professional conduct expected of a staff member. [ 18 ] Based on this provision in the Faculty Agreement, she concluded that: 1. The purpose of SSHRC is to fund and promote research in the social sciences and humanities disciplines; 2.

Service on a SSHRC Committee is therefore service to a discipline; 3. Dr. Szostak ’ s participation in the SSHRC Committee was service to his discipline; 4. Service to his discipline was therefore also service to the U of A under the Faculty Agreement; 5. Dr. Szostak ’ s participation in the SSHRC Committee was therefore part of his obligations to his employer, and 6. Under the Faculty Agreement the U of A imposed an additional obligation on Dr. Szostak – requiring that his services to the discipline be conducted in a professional manner. 7.

Therefore, the U of A has “ some right to deal with the records. ” (I note here that although the Adjudicator predicated this analysis as dealing with whether the University had some right to possess the record, she concludes that the University has some right to deal with the record.) [ 19 ] In particular, the Adjudicator noted that Dr.

Szostak ’ s evidence was that he cancelled classes to attend SSHRC Committee meetings with the U of A ’ s knowledge, and that this suggested that the U of A authorized his attendance. [ 20 ] The Adjudicator then went on to analyze the U of A ’ s mandate, finding it to be comparable to the WLU ’ s mandate because it included a commitment to research, as well as a commitment to partnerships with government and public agencies.

This mandate, she concluded, encompassed SSHRC participation. [ 21 ] The Adjudicator also considered the evidence of the technical support analyst who indicated that: “ The University does not monitor email except in extraordinary circumstances of breaches of ethics or law... ” and that the records were created in accordance with a Conditions of Use policy.

The Adjudicator concluded that this evidence further supported the conclusion that the U of A had “ some right to deal with emails on its server. ” [ 22 ] In relation to the second question, the Adjudicator concluded that the University cared for and maintained the email records on its server since it backed up the Mail Server every 24 hours to protect the University ’ s main network. She infers that the University would not back up or destroy records unless it thought it had some authority to do so. [ 23 ] In

summary, the Adjudicator concluded: 1. Bare possession of information does not amount to custody;

2. Relying on the decision in Wilfred Laurier University , she considered two factors: a. whether service on the SSHRC Commitee was within the core of the University ’ s mandate; and b. whether the records were sufficiently integrated with the University ’ s information systems. 3. Academic staff members ’ responsibilities are set out in Art. 7 of the Faculty Agreement; in particular Art. 7.02(c), of the Agreement indicates that part of those responsibilities include providing service for the discipline of the staff member: (

c) provision of service to the discipline of the staff member; participation in the governance of the University, the Faculty and the Department; and dissemination of knowledge to the general public by making available the staff members expertise and knowledge of the discipline all of which shall be carried out according to the standards of professional conduct expected of a staff member. 4. Since SSHRC ’ s purpose is to fund and promote research, it follows that service on a SSHRC committee is also service to the discipline; 5. Dr.

Szostak, who may have created the records responsive to the request, was on a SSHRC committee, and that constituted service to his discipline, and therefore to the University. 6. When Dr. Szostak provided service to the SSHRC, he cancelled classes with the knowledge of the University, suggesting that the University authorized him to serve on the SSHRC. 7. The University ’ s mandate is similar to the mandate of Wilfred Laurier University, including a commitment to partnerships with governments and public agencies to exchange information; 8.

The University therefore has some authority to ensure that service is being performed to a faculty member ’ s discipline in a professional manner, and that implies “ some right to deal with records ” ; 9. The University has a Conditions of Use for emails and includes an ability to monitor email in “ extraordinary circumstances of breaches of ethics or law ” , thus the University has some right to deal with emails on its server; 10. When the request for records was received, the University asked Dr.

Szostak to conduct a search for any responsive records; this is consistent with both parties considering that the University had some right to deal with potentially responsive records. IV Standard of review [ 24 ] The U of A and AASUA agreed that the standard of review was correctness, while Dr. Oleynik argued that the standard should be reasonableness.

The U of A argued that the standard of review is correctness because the issue of whether the records are in the custody or control of a public body is a question of jurisdiction, relying on the Court of Appeal decision in Alberta (Information and Privacy Commissioner) v. Alberta (Freedom of Information and Protection of Privacy Act Adjudicator ), 2011 ABCA 36 , which concluded that the determination of whether a record fell within an exclusion under s. 4(

d) of FOIP was jurisdictional and subject to the correctness standard. The University also cites a number of decisions from other jurisdictions that conclude that the determination of whether records are in “ custody or control ” of the public body is jurisdictional. [ 25 ] However, after the appeal was argued the Supreme Court of Canada released its decision in Alberta (Information and

Privacy Commissioner) v. Alberta Teachers Association, 2011 SCC 61 . There Rothstein J for the Court concluded that category of a true question of jurisdiction should be interpreted narrowly, particularly when the tribunal is interpreting its own statute, and that “ the

interpretation by the tribunal of ‘ its own statue ... closely connected to its function with which it will have particular familiarity ’ should be presumed to be a question of statutory

interpretation subject to deference on judicial review ” (at para. 34). [ 26 ] I asked the parties if they wished to make additional submissions in relation to this new decision, and they did so. [ 27 ] Dr. Oleynik re-stated his submissions that reasonableness is the appropriate standard because the issue involves an expert tribunal ’ s

interpretation of its home statute. He argued that there is no true question of jurisdiction here, unless one were to consider the Office of the Privacy Commissioner of Canada as a “ competing specialized tribunal ” . Suggesting that this Court has rejected his requests to (

i) learn more about interactions between SSHRC and the U of A at the time of his information request and to (ii) seek submissions from SSHRC or the Office of the Privacy Commissioner of Canada, Dr. Oleynik submits that such an approach would now be inappropriate. [ 28 ] The U of A submits, on the other hand, that the ATA decision does not change its assertion that the question here is jurisdictional and subject to the correctness standard. It submits that the ATA decision is distinguishable and of limited value for the following reasons: 1. ATA ’ s unique factual context limits its applicability to this case; 2.

The three concurring decisions in ATA addressed the elements of standard of review on a theoretical and obiter basis, since all agreed the issue in ATA was not jurisdictional; 3. The Court continued to rely on the decision in Dunsmuir v. New Brunswick, 2008 SCC 9 , and did not depart from it any substantive way; 4.

Rothstein J referred to the Dunsmuir principle that the standard of review can be ascertained by relying on previous jurisprudence on a given issue, and that there are multiple decisions concluding that the question of the “ custody or control ” of records under access and privacy legislation is a jurisdictional question; 5. This is a true jurisdictional question as it asks whether the tribunal ’ s statutory grant of power gives it the authority to make the inquiry.

In this case, if a document is not in the custody or control of the U of A, FOIPPA does not apply and the Commissioner has no authority to deal with it; 6. Questions regarding the jurisdictional lines between two or more competing specialized tribunals are jurisdictional, and here the Adjudicator erred in determining that the U of A had custody or control of the records, when it was manifestly clear that SSHRC had custody or control of the records in question. 7. The Adjudicator ’ s

interpretation of the Faculty Agreement was outside of her area of expertise and therefore subject to the standard of correctness. [ 29 ] The U of A further argues that there is a clear distinction between the question of whether the Commissioner can extend the statutory timelines for the completion of an inquiry as in ATA , and the question of the

interpretation of s. 4 of FOIPPA , which is “ clearly intended to be a ‘ jurisdiction limiting provision. ’ In the ATA decision, the U of A argues, there was no question that the Commissioner had authority over the records in question at the outset, and the question was whether the Commissioner lost jurisdiction by not complying with the timelines.

Here the question is whether the Commissioner ever had jurisdiction to conduct the inquiry. [ 30 ] AASUA submits that the question of custody or control of the records relates to the U of A ’ s rights to use, benefit from and deal with the records, and therefore a decision about custody or control of the records relates directly back to the collective agreement, an

area in which the Commissioner (and his adjudicators) have no expertise. Further AASUA argues that determination of which documentsmay be in the custody or control of a public body is not a core function of the Commissioner.

The determination of whether records arein the custody or control of a public body is a determination of whether the Commissioner has jurisdiction, and therefore is a truequestion of jurisdiction. [31] AASUA goes on to submit that the issues of custody and control have wider application than under FOIPPA, and thereforethe question is a general question of law of central importance to the legal system, subject to the correctness standard, as discussed inCanada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53,.

It notes that there are over 350instances in which the phrase “custody or control” appears in Canadian legislation, including the Criminal Code and statutes dealing withinsurance, civil procedure, public archives, and administration of estates. [32] AASUA also cites the decisions in Ontario (Attorney General) v. Ontario (Assistant Information and PrivacyCommissioner) (Walmsley) (1997), (ON CA), 34 OR (3d) 611, 101 OAC 140 (ONCA) and Ontario (Ministry of theAttorney General) v.

Ontario (Information and Privacy Commissioner), 2011 ONSC 172, which held that the determination of whetherrecords were in the custody or control was jurisdictional. [33] In my view the majority decision in ATA is very clear. Rothstein J made several key observations. He noted that Dunsmuirheld that deference will usually result when a tribunal is interpreting its own statute, at para 30: ... unless the

interpretation of the home statute falls into one of the categories of questions to which the correctness standard continues toapply, i.e., "constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outsidethe adjudicator's expertise, ... questions regarding the jurisdictional lines between two or more competing specialized tribunals [and] truequestions of jurisdiction or vires" (Canada (Canadian Human Rights Commission)v.

Canada (Attorney General) ... [34] Rothstein J further noted that questions that are specific to the administrative regime for the protection of personalinformation are not questions of central importance to the legal system.

He also concluded that since Dunsmuir, the correctness standardapplies when the question is both one of central importance to the legal system and outside the adjudicator's specialized area of expertise(para. 46). [35] As well, Rothstein J noted that the category of true questions of jurisdiction is very narrow, and repeated the caution that theCourts should be cautious in branding issues as jurisdictional.

He concludes, at para 34, 39, and 42: The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importance when thetribunal is interpreting its home statute. In one sense, anything a tribunal does that involves the

interpretation of its home statuteinvolves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review... it issufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, theinterpretation by the tribunal of "its own statute or statutes closely connected to its function, with which it will have particularfamiliarity" should be presumed to be a question of statutory

interpretation subject to deference on judicial review... True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an administrative tribunal interpretingor applying its home statute, it should be presumed that the appropriate standard of review is reasonableness. As long as the truequestion of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should notreview a tribunal's

interpretation of its home statute on the deferential standard of reasonableness... The practical approach is to direct the courts and counsel that at this time, true questions of jurisdiction will be exceptional and, shouldthe occasion arise, to address in a future case whether such category is indeed helpful or necessary. [Emphasis added] [36] I note as well that Binnie J, attempting to stake a middle ground between the majority decision and the concurring reasons ofCromwell J, noted that while the concept of a "true question of jurisdiction or vires" is theoretically satisfying, it is not helpful “at the

practical everyday level of deciding whether or not the courts are entitled to intervene in a particular administrative decision” (at para80). He continues: On this point, Cromwell J. adopts, at para. 95, the deeply problematic statement by the Dunsmuir majority that jurisdiction should beunderstood in the "narrow sense of whether or not the tribunal had the authority to ... decide a particular matter" ... As Professor D.Mullan pointed out in "Dunsmuir v.

New Brunswick, Standard of Review and Procedural Fairness for Public Servants: Let's Try Again!"(2008), 21 C.J.A.L.P. 117, at pp. 126-30, this formulation was not narrow but so broad as to risk bringing back from the dead thepreliminary question jurisprudence from which Cromwell J. endeavours to dissociate himself, which reached its unfortunate zenith inMetropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, (SCC), [1970] S.C.R. 425,and Bell v.

Ontario Human Rights Commission, (SCC), [1971] S.C.R. 756. [Emphasis added] [37] Based on this very clear language by the Court, I cannot accept the U of A’s submission that these discussions regarding thestandard of review of jurisdictional questions were limited to the specific factual context in ATA or that they were obiter. Both courtsbelow had found the question to be jurisdictional; the Court’s discussion of when an issue is jurisdictional was key to that portion of thedecision, and not obiter.

Further, there is nothing in Justice Rothstein’s analysis to suggest that the Court was limiting these comments tothe narrow facts at issue in ATA; in fact, as the above quotes demonstrate, the Court was setting out general principles that were deriveddirectly from Dunsmuir. [38] Further, I do not accept the U of A’s assertion that previous jurisprudence on this issue still governs this question. Dunsmuirprovided that if the jurisprudence has already adequately determined the degree of deference to be accorded to a decision maker on agiven issue, no further analysis is necessary.

But, here the Supreme Court of Canada has indicated that there is a presumption ofreasonableness when a tribunal interprets its own statute, unless the issue falls within specific categories: constitutional questions,questions of law of central importance to the legal system and outside the adjudicator's expertise, questions regarding the jurisdictionallines between two or more competing specialized tribunals, and true questions of jurisdiction or vires.

Therefore that previous case lawholding otherwise can no longer be considered good law. [39] There is no doubt that this is not a constitutional question. [40] Both the U of A and AASUA suggests that this issue falls within the category of “true jurisdictional questions” because theCommissioner in determining whether the records are within a public body’s custody or control is determining whether he hasjurisdiction. This is the classic example of “preliminary jurisdictional question” decried by Binnie J (at para. 80) and Cromwell J (at para95). As Rothstein J notes “anything a tribunal does that involves the

interpretation of its home statute involves the determination ofwhether it has the authority or jurisdiction to do what is being challenged on judicial review”. The U of A and AASUA cast the net fartoo widely in suggesting that the

interpretation of “custody or control” is a true question of jurisdiction. [41] Neither do I accept that this is a question of competing specialized tribunals. The Federal Privacy Commissioner’s decision isnot under review and therefore is not at issue.

This not to suggest that the fact that SSHRC is a federal public body is irrelevant to theanalysis of the merits of the decision, but it is not a factor in determining the standard of review. [42] Similarly the fact that the Adjudicator attempted to interpret portions of the Faculty Agreement in the process of determiningwhether the records were in the custody or control of the U of A does not change the standard of review. The Supreme Court inCanadian Union of Public Employees (C.U.P.E.) v.

Ontario (Minister of Labour), 2003 SCC 29 cautioned against sub-dividing issuesfor the purposes of determining the standard of review.

Binnie J, for the majority, noted at para 97: Although the net result of a s. 6(5) appointment is the naming of a particular individual as a chairperson, the appointment is inevitablythe product of a number of issues or determinations, some of them having to do with procedural fairness (e.g., do I first have to consultwith the parties?), some of them legal (e.g., to what extent is my choice constrained by the HLDAA?), some of them factual (e.g., whatqualifications am I looking for?), and others of mixed fact and law (e.g., is this individual "qualified" within the range of choicepermitted to me by the HLDAA?).

The court's task on judicial review is not to isolate these issues and subject each of them todiffering standards of review. The unions' attack is properly aimed at the ultimate s. 6(5) appointments themselves. [Emphasis added]

[43] Similarly the majority of the Supreme Court of Canada in Council of Canadians with Disabilities v. VIA Rail Canada Inc.,2007 SCC 15 held that although there were several components to the Transportation Agency’s decision, the decision fell within itsexpertise and mandate even though it had jurisdictional and human rights elements. A single standard of review was appropriate. [44] This is not to suggest that every decision under review is only subject to a single standard of review. Clearly, where there areseverable and discrete issues, separate standards of review may apply. See Lévis (City) v.

Fraternité des policiers de Lévis Inc., 2007SCC 14, issued the day before the Via Rail decision, which determined that there were two issues, subject to differing standards. [45] Further, as noted by the Supreme Court of Canada in Law Society of New Brunswick v. Ryan 2003 SCC 20, [2003] 1 S.C.R.247 at para 56 not every element of the reasoning given must independently pass a test for reasonableness. The question is ratherwhether the reasons, taken as a whole, are tenable as support for the decision.

At all times, a court applying a standard of reasonablenessmust assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result.Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as awhole. [46] However, in my view the

interpretation of the collective agreement and whether the Adjudicator correctly interpreted it aremerely factors to be considered when addressing the merits of the decision on the specific issue in question – were the records in thecustody or control of the public body. In my view, AASUA’s assertion that the question of custody or control relates directly back to theinterpretation of the collective agreement reverses the analysis. The collective agreement, whether interpreted correctly or not, is onlyone factor in the analysis of the application and

interpretation of FOIPPA, the Commissioner’s home statute. [47] I also see no important distinction between whether the Commissioner initially had jurisdiction and allegedly subsequentlylost it by breaching the timelines, as in ATA, and whether the Commissioner has jurisdiction ab initio, as here. This is merely a re-statement of the U of A’s argument that this is a question of true jurisdiction to enter into the inquiry – in other words, the issue of“preliminary jurisdictional jurisdiction” rejected repeatedly by the Supreme Court. [48] I also disagree with ASSUA’s submissions that the

interpretation of “custody or control” is a question of general law of wideapplication and outside the Commissioner’s core functions. The fact that the terms “custody or control”, or “custody”, or “control”appear in many pieces of legislation does not make the

interpretation of the term in FOIPPA a question of general law. FOIPPA is aspecialized legislative enactment, and the

interpretation of “custody or control” within the context of FOIPPA has no bearing on theinterpretation of the same words in other legislation. It is trite law that “the words of

an Act are to be read in their entire context and intheir grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27 at para 21. The Commissioner has expertise in theinterpretation of the legislation in question, including the entire context, scheme and object of FOIPPA.

It is these three factors that makethe phrase unique and specifically applicable to FOIPPA, even when the same words are used in other enactments in other contexts andschemes and for other purposes. [49] I conclude that I am bound by the decision in ATA, and that the Adjudicator’s decision is one that is presumptively oweddeference because she was interpreting her home statute. The U of A and ASSUA have not satisfactorily demonstrated why this Courtshould not review the

interpretation of FOIPPA on the deferential standard of reasonableness. I will review the decision on thereasonableness standard. [50] What constitute a reasonable decision has been extensively reviewed by the Supreme Court of Canada. In Dunsmuir, theCourt noted (at para 47): Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions.

Tribunals have a margin of appreciation within the range ofacceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [Emphasis added]

[ 51 ] In Newfoundland Nurses , Abella J noted This, I think, is the context for understanding what the Court meant in Dunsmuir when it called for "justification, transparency and intelligibility".

To me, it represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist. [ 52 ] Thus the decision must be analysed in a respectful fashion that looks to whether the reasons support a logical and acceptable outcome. V The Legislation [ 53 ] The relevant sections of FOIPPA are: 2 The purposes of this Act are (

a) to allow any person a right of access to the records in the custody or under the control of a public body subject to limited and specific exceptions as set out in this Act, 4(1) This Act applies to all records in the custody or under the control of a public body...but does not apply to the following:... 6(1) An applicant has a right of access to any record in the custody or under the control of a public body , including a record containing personal information about the applicant. 10(1) The head of a public body must make every reasonable effort to assist applicants and to respond to each applicant openly, accurately and completely.

VI The Parties ’ Positions [ 54 ] The Commissioner, while named as a Respondent, has not filed an appearance or made submissions. a. The U of A i. Custody or control [ 55 ] The University takes the position that Dr. Szostak ’ s participation in SSHRC is not part of his academic duties for the University. Further, it argues that the fact that his emails in relation to SSHRC were on the U of A server does not place them in the University ’ s custody or control.

These emails, they argue are analogous to personal emails that have been found not to be in the custody or control of other public bodies; see for example City of Ottawa v. Ontario , 2010 ONSC 6835 . It argues that this decision supercedes the Ontario Privacy Commissioner ’ s decisions relied on by the Adjudicator.

[ 56 ] The University further argues that the Adjudicator failed to consider the purpose of FOIPP legislation, which is to ensure transparency in government, and that while she set out the appropriate list of factors to consider (see Decision, para. 32), she instead devised her own test of “ some right to deal with ” records and whether these records “ passed through ” University. servers. Applying the factors as set out in para. 32 of the Decision, the University argues that it has no custody or control. 1. Created by employee of the public body?

The University argues that the email in question was not created by Dr. Szostak within the context of his employment duties with the University; 2. Intended Use ? Dr. Szostak ’ s intention was that the document be provided to SSHRC personnel and remain confidential, and did not intend that it would be used by the University; 3. Possession? Employees may keep private items at the place of work without them falling within the employer ’ s possession and custody. 4. If not, is the record being held by the employee for the purposes of his duties as an employee? Dr.

Szostak was not acting in his capacity as an employee of the University, but for SSHRC, and independent entity that requires confidentiality of all its volunteers. 5. Does the public body have a right to possession of the record? The University has no business need to possess the SSHRC records and therefore no right to possess them. 6. Does the content relate to the public body ’ s mandate and functions?

The University argues that its mandate should be examined to determine whether the record in question relates to the business of the public body, not whether the public body is an institution that approves and encourages the work of an external organization. 7. Does the public body have the authority to regulate the record ’ s use? Computer use policies and document retention strategies are not relevant to documents an employee creates and holds in their personal capacity.

The U of A in its brief explores this topic in more depth, pointing out the differences between Wilfred Laurier ’ s computer use policy and the University ’ s computer use policy. The first exhibits very strict control over the use of computing and communication facilities, specifying that they cannot be used for outside purposes, while the University ’ s policy is broader and provides no restrictions on use for limited personal use. 8. Has the public body relied on the record? No 9. Integration of records?

There was no integration of SSHRC records and University records because they have different identities and mandates. The evidence is that the records were always intended to be held temporarily and then deleted. 10. Can the public body dispose of the record? Not relevant, because Dr.

Szostok had the ability and intention to delete the records, and any residual ability of the University to destroy back-up tapes is not evidence of the University ’ s authority to dispose of the record. [ 57 ] The University further argues that the University ’ s mandate is distinguishable from Wilfred Laurier ’ s mandate, because there the mandate was legislatively enacted, while the University of Alberta created its own mandate, subject to Ministerial approval. At the relevant times, the University did not have a mandate to be interpreted by the Adjudicator, because it had not yet been approved by the Minister.

Moreover, the University argues, a broadly expressed mandate does not confer “ custody or control ” over every possible activity that might be viewed as connected to research in some way.

[ 58 ] Finally, the University argues that the Adjudicator wrongly interpreted the Faculty Agreement when she suggested that the Agreement contemplated participation as a member of the SSHRC selection Committee. The University suggests that the error lies in the assumption that because the University permits faculty members ’ outside activity and considers this outside activity in performance evaluations, this somehow gives the University control. [ 59 ] It is at this point that AASUA and the University disagree.

The University asserts that participation in SSHRC is not contemplated or precluded by the Agreement, while AASUA asserts that participation in SSHRC is part of a faculty member ’ s duties under the Agreement. [ 60 ] The University asserts that staff members have three areas of work: teaching, research and provision of service to their discipline. Service includes “ Supplementary Professional Activity ” (SPA), such as consulting, professional or practice or other paid outside work, “ other ” , and “ professional and public activities ” .

The evidence before the Adjudicator was that voluntary service on SSHRC falls within either “ other: ” or “ professional and public activities ” . This work is remote from the core teaching and research responsibilities of staff members. The University concludes that service on SSHRC committee is neither required nor directed by the University and therefore is not an employment duty, and the University does not have custody or control of the records arising from such participation. b. Dr. Oleynik i. General submissions [ 61 ] Dr. Oleynik submissions are lengthy and often miss the point of the judicial review.

He argues that his request for his own personal information does not infringe Dr. Szostak ’ s academic freedom, as it has no impact on how he conducts his own research. He goes on to note that different kinds of scientific documents should be treated differently under FOIPPA , suggesting that pure science is compromised by politics, business interests, and policy. He notes that peer review for the grant process should be differentiated from peer review for the purpose of publication, since only the first entails the expenditure of public funds. [ 62 ] Dr.

Oleynik argues that there are many imperfections in the SSHRC peer review process, and in particular that subjective factors are significant. He notes that the Standard Research Grant score consists of two parts: the Record of Research Achievement and the proposed Program of Research. The first score, he argues, is personal information. In my view, this misses the point - the question here was never whether the information in the requested record was personal information. [ 63 ] Dr.

Oleynik then discussed his attempts to obtain information from SSHRC, including federal access requests that were unresponsive to what he was seeking, thereby leading to his requests at each University. SSHRC responded that it did not have custody or control of the records he was seeking, because his request was for the email records on the various universities ’ email servers, and not for any records held by SSHRC.

Thus, he argued, if SSHRC does not have custody or control and the Universities do not, there is a hole in the legislative scheme. [ 64 ] This argument, which may be accurate, does not contribute to the question on judicial review - were the records in the custody or control of the University? If the answer is that neither SSHRC or the University have custody or control, there may indeed be information that does not come within either the provincial or federal legislation.

That may, or may not, be the legislatures ’ and Parliament ’ s intention, but it is not for this Court to fix such a “ hole ” , especially not in judicial review. [ 65 ] Dr. Oleynik goes on to discuss the democratic purposes served by legislation like FOIPPA and argues that access to the personal information he seeks is encompassed by that purpose, because it would cast light on the way government money is disbursed. Access to this information is said to ensure SSHRC ’ s accountability.

Again, this may be so, but provincial FOIPPA legislation is not about ensuring accountability of federal government entities; it is concerned with provincial public bodies. In fact, on a purely jurisdictional basis OPIC cannot deal with access to information by SSHRC. Dr. Oleynik is trying to obtain indirectly, through provincial legislation, what he was unable to obtain through the Federal legislation. ii. Custody or control

[ 66 ] Dr. Oleynik argues that service to academic discipline is an integral part of the staff members ’ duties because it is an element considered in performance evaluations. One cannot be a SSHRC Adjudicator unless affiliated with a University. He argues that universities are not independent from SSHRC because SSHRC sets out compulsory requirements for conflicts of interest and distributes research funds for supporting research.

In my view, neither of these suggest that the University is not independent of SSHRC – it makes sense that a granting institution require a policy on conflict of interest, but that does not imperil independence. Nor can the fact that research funds come from SSHRC. [ 67 ] In regards to the conundrum that neither the universities or SSHRC say they have control over the records generated in adjudication, Dr. Oleynik argues that “ it is up to the legislators (and the Court) to help delimit areas of their joint and separate responsibility ” (para. 32 of Dr. Oleynik ’ s Brief).

This misunderstands the Court ’ s role; the Court ’ s job is to interpret the legislation as it finds it, using principles of statutory

interpretation, not to re-create it. [ 68 ] Dr. Oleynik not only opposes the University ’ s application for certiorari , he also ask this Court to Order the University of Alberta “ to produce documented evidence in respect of all contacts of its representatives, namely Dr. Harry Davis and his associates, with the SSHRC staff when processing [his] request to access personal information. ” This application falls well out this Court ’ s jurisdiction of the judicial review commenced by the U of A. c.

AASUA [ 69 ] AASUA ’ s primary focus in intervening is to ensure that records produced by academic staff members in the course of both participating in external committee work and within the context of their internal research and other academic work are not subject to FOIPPA . Thus AASUA takes exception to the University ’ s assertion that the SSHRC committee work was not part of an academic staff member ’ s employment duties.

Its implied concern is that if the Court concludes that the SSHRC records are not within the University ’ s custody or control because they were not produced as part of an employment duty, then records produced in the course of internal research etc. may be within the University ’ s custody or control and therefore subject to a FOIP request. [ 70 ] AASUA asserts that as a matter of academic freedom and “ long-standing custom ” documents and records produced within the contractual obligations of academic staff that relate to teaching, research, and writing are not made available to the University, nor is the University entitled to require access or copies of such records, or even to knowledge that such records exist (para. 35-37 of Intervener ’ s Brief).

This it suggests is just as applicable to external committee work as it is to most internal academic work. It suggests that internal University of Alberta committee and governance work that relate to the University, to University governance, and the functioning of the University may well fall within the purpose of FOIPPA , and records and documents created in the course of such work may be under the custody or control of the University. [ 71 ] It proposes a different test for custody or control of documents within the context of Universities and academic staff: 1.

Records that are created in the course of participating in the governance of the University; 2. Records that are produced in the course of participating in the operations of the University; 3. Records where the University is entitled to require access to or a copy of the record for the use by the University. [ 72 ] AASUA asserts that the only way to determine whether a university has custody or control of records is to interpret the Faculty Agreement. Under that Agreement, either party can refer the matter to the ARC (Art. 28), and if the ARC is unable to agree on an

interpretation, the matter may be referred to arbitration under Art. 29. AASUA argues that the Adjudicator should have determined whether there was a disagreement between the University and AASUA as to the

interpretation of the Agreement, and then the disagreement (now identified by AASUA as whether the Agreement contemplates and includes participation on a SSHRC committee as part of an academic staff member ’ s employment duties) should have been referred to ARC for determination. It asks that this Court require the Adjudicator to do just that.

[ 73 ] In my view, AASUA makes several unsupported assumptions here. The first is the assertion that custody or control can only be determined by interpreting the Faculty Agreement. The Laurier and University of Ottawa decisions used the faculty agreements to inquire into the nature of the relationship between the universities and its staff members. That does not mean that is a necessary step in answering the question of custody or control. [ 74 ] Further, there is an assumption that only the ARC or an arbitrator under the Agreement can interpret the Agreement.

That is true as between the parties, but this is not an issue between AASUA and the University subject to arbitration. That is consistent with my decision in AASUA ’ s judicial review application. The dispute here is not between the employer and the union regarding the application of the collective agreement, and an analysis that focuses on the

interpretation of the collective agreement shifts the analysis from the real issue – did the U of A comply with its obligations under FOIPPA . [ 75 ] In the recent Ontario decision, University of Ottawa , PO-3009-F ( U of O, Final Order ), the Ontario adjudicator determined that a labour arbitrator did not have jurisdiction to determine the question of custody or control of records under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (the Ontario legislation), concluding that the Legislature intended the Commissioner to have sole jurisdiction to make that determination.

AASUA, in additional submissions regarding the application of U of O, Final Order , suggests that while the Privacy Commissioner may have jurisdiction to rule on the ultimate determination of custody or control, a labour arbitrator must have jurisdiction to rule on all matters related to the employment relationship.

It reiterates its argument that the Adjudicator should have referred the employment matters to a labour dispute resolution. [ 76 ] I note that in U of O, Final Order , the matter first arose as a grievance when the University of Ottawa ’ s response to a records request was to require its faculty members to produce any responsive records for its review. The union grieved the request, and the matter went to arbitration before a labour arbitrator, Arbitrator Chodos. Arbitrator Chodos issued three decisions purporting to address custody or control of records.

At the same time, the party seeking the records appealed the University ’ s refusal to provide some of the records to the Ontario Privacy Commissioner, and that appeal eventually proceeded to adjudication. The Ontario adjudicator concluded that she, not the arbitrator, had exclusive jurisdiction to determine whether a public body has custody or control of records. [ 77 ] This dispute arose in an entirely different context; the U of A did not require faculty members to produce records, asking only if there were any responsive records. Further, no grievance was filed.

There is no conflict between an adjudicator ’ s and arbitrator ’ s jurisdiction, and no reason why the Adjudicator could not consider and interpret the Agreement within the context of the access request. Her decision is binding only as it relates to the access request - which does not involve a dispute between the University and AASUA or one of AASUA ’ s members.

The conclusions she reaches are not binding on the ARC or an arbitrator under Art. 28 and 29 of the Faculty Agreement. [ 78 ] AASUA also discusses the importance of participation in external committees under Art. 7 and notes that this participation is considered in performance evaluations under Art. 13. However, it argues that it is essential to academic freedom that records produced for academic purposes, whether internal or external, remain out of the University ’ s custody or control.

The question of academic freedom was central to the Adjudicator ’ s analysis in U of O, Final Order. [ 79 ] In my view, it is not necessary to address the issue of academic freedom. While it was an important factor in U of O, Final Order , the factor was never raised before the Adjudicator here. It would therefore be inappropriate to address within the context of this judicial review.

Academic freedom may be one relevant factor in considering whether a university has custody or control of records, but until the Commissioner considers that question in a hearing that raises the issue at first instance, this Court need not address it here. VII Analysis [ 80 ] Because the U of A and AASUA argued that the appropriate standard of review was correctness, their submissions focused on arguments that addressed numerous alleged errors.

I have concluded that the appropriate standard of review is reasonableness, and thus the analysis must approach the Adjudicator ’ s reasons from a different perspective than that proposed by the U of A and AASUA. It is not a question of error, but a question of whether the decision is rationally supportable based on the record before the Adjudicator. [ 81 ] I conclude that the Adjudicator ’ s decision was unreasonable on three inter-related grounds; the Adjudicator:

1. failed to consider the purpose of the legislation in the course of interpreting the meaning of “custody or control”; 2. failed to recognize that SSHRC, a federal body subject to a different legislative privacy regime, exercised significant control overthe responsive records; and 3. failed to apply the relevant factors for determining whether a public body has custody or control, and unreasonably applied andrelied on two irrelevant factors. [82] These failures demonstrate that the decision is not justifiable or intelligible.

The Adjudicator’s reasons draw unjustifiedconclusions, unsupported by the evidence and her conclusion that the records were within the U of A’s custody or control is not withinthe range of acceptable outcomes. a. Purpose of FOIPPA [83] In Dagg v. Canada (Minister of Finance), (SCC), [1997] 2 SCR 403 the Supreme Court of Canadadiscussed the purpose of access to information legislation (at para. 61): The overarching purpose of access to information legislation, then, is to facilitate democracy. It does so in two related ways.

It helps toensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, thatpoliticians and bureaucrats remain accountable to the citizenry. [84] Here, the Adjudicator listed a number of factors drawn from previous access to information decisions, and then applied onlytwo factors, suggesting that they were derived from the factors in the previous jurisprudence. However, the Adjudicator did not considerhow those factors relate to the purpose and intent of the legislation. In Order 120, [1989] O.I.P.C.

No. 84 Ontario Information andPrivacy Commissioner Linden first formulated these factors, noting the importance of taking into account the purpose of the legislation: The parties in this appeal have provided me with detailed

interpretations of the words "custody" and "control" as they are used in variouslegal contexts such as property law, insurance law, and family law. While these submissions are of some help, their usefulness is limitedby the fact that they do not take into account the use of the terms "custody" and "control" within the context of the unique purposes andprinciples of the Freedom of Information and Protection of Privacy Act, 1987. [85] Similarly in Neilsen v.

Office of the Information and Privacy Commissioner, [1998] BCJ 1640 (BCSC), Dorgan J notedthat it was important to consider the purpose and scope of the legislation when determining whether personal notes of a schoolcounsellor were within the custody or control of the public body, a school district. [86] The Adjudicator here asked whether the U of A had “some right” to deal with the record and whether it some responsibilityfor the care and protection of the records, without first considering whether these factors were relevant to facilitating democracy orgovernment accountability and transparency.

The records relate to government research grants provided by a federal government body –SSHRC. The U of A’s involvement is purely incidental; its employee participated in voluntary committee work on the SSHRCcommittee. Even assuming that this participation was part of Dr.

Szostak’s employment duties for the U of A, which I do not necessarilyaccept, there is no rational connection between government accountability for SSHRC funding decisions and the U of A. [87] It was unreasonable for the Adjudicator to uncritically apply factors related to the University’s tenuous and limited right todeal with the responsive records and some broad and general authority to copy, back-up and destroy the records, without consideringwhether these factors related to the democratic purposes of the legislation. b. SSHRC

[ 88 ] The Adjudicator failed to consider that SSHRC has no connection to the University or its records, Dr. Szostak did not ask for, or need to obtain, the U of A ’ s permission to participate in the SSHRC process, and the U of A did not require him to participate in the SSHRC process as part of his employment. In fact, the U of A did not become aware of his participation in the process until he cancelled classes in order to participate. [ 89 ] Unlike the University, SSHRC had the authority to direct Dr.

Szostak to treat all information acquired in the process as confidential and to delete and destroy any records created in the process. Dr. Szostak entered into an agreement with SSHRC to return or destroy all materials, and to keep deliberations, comments and recommendations confidential. Of the two public bodies here, it was SSHRC that exerted some specific control over the records. [ 90 ] In Simon Fraser University v.

British Columbia (Information and Privacy Commissioner) , 2009 BCSC 1481 , Leask J held that it is inappropriate to find that records are under the control of the two different organizations subject to two separate legislative regimes respecting privacy (at para. 81), concluding that the records were held by a private corporate entity, a corporation owned by the University, subject to different legislation than the public body, the University.

Similarly here, it was unreasonable for the Adjudicator to find that the records were in the control of the University, a public body under provincial legislation, when the evidence was clear that SSHRC, a public body under federal legislation, exercised significantly more control over the records than the University. [ 91 ] I note here that I am not saying that SSHRC had “ custody or control ” of the records in question within the meaning of the relevant access to information legislation. That question is not before me.

I am only noting that the Record reveals that SSHRC had a more direct relationship with those records than the University. c. The Relevant Factors [ 92 ] The Adjudicator set out the factors that have been considered to determine whether a public body has custody or control of records in the context of freedom of information legislation. These factors have been relied on in numerous decisions, beginning with the decision in Order 120 . Those factors are: 1. Was the record created by an officer or employee of the public body? 2. What use did the creator intend to make of the record? 3.

Does the public body have possession of the record either because it has been voluntarily provided by the creator or pursuant to a mandatory statutory or employment requirement? 4. If the public body does not have possession of the record, is it being held by an officer or employee of the public body for the purposes of his or her duties as an officer or employee? 5. Does the public body have a right to possession of the record? 6. Does the content of the record relate to the public body's mandate and functions? 7. Does the public body have the authority to regulate the record's use?

8. To what extent has the record been relied upon by the public body? [ 93 ] The Adjudicator considered only two factors: did the University have some right to deal with the record, and does the University have some responsibility for the care and protection of potentially responsive records? The first question is similar to the fifth factor above, but the Adjudicator qualifies the factor by asking whether the University had “ some ” right to possess the record, and then in answering the question concludes that the University had “ some right to deal with the records ” .

The factor relied on in the jurisprudence has not been so modified, and asks simply did the public body have a right to possess the record in question. [ 94 ] The question of whether the University has “ some responsibility for the care and protection of the record ” is not one of the factors the Adjudicator set out from the jurisprudence, but is drawn from the WLU decision. [ 95 ] The Adjudicator subsumed two factors from the list within her analysis of the question of whether the University had some right to possess the record: whether the record relates to the University ’ s mandate and functions and whether the University created the record. [ 96 ] In answering the first question, the Adjudicator looked to the University ’ s mandate, the collective agreement, and the evidence of the technical support analyst that the University monitors email in extraordinary circumstances and that the University had a Conditions of Use policy in relation to email.

In answer to the question she posed – whether University had some right to possess the record – she concluded that the University had “ some right to deal with the records. ” Before even addressing the question of the analysis of the faculty agreement, the University ’ s mandate, and the evidence of the technical support analyst, I find that it was unreasonable to find that “ some right to deal with records ” , the factor considered by the Adjudicator, is equivalent to the “ right to possess the records, ” the factor set out in previous jurisprudence.

Dealing with records, for example routine back-up of records on a server or monitoring in extraordinary circumstances, is not equivalent to a right to possess. Under a reasonable

interpretation, a right to possess a record must at the very least include a right to access and use the record for its own use. [ 97 ] Further, the Adjudicator ’ s conclusion that the Faculty Agreement provided the University with some right to deal with the records is unreasonable and flies in the face of the evidence. The general provisions of Art. 7.02 cannot be reasonably read as providing the University with the right to possess or deal with records created by faculty members in fulfilment of their obligations with another body – SSHRC.

The agreements with SSHRC provide that the committee work is confidential and that committee members are to destroy any materials and to keep deliberations, comments and recommendations confidential. There is nothing in the very general provisions of Art. 7.02 that could be read as providing that the University could deal with these records. Art. 7.02 of the Faculty Agreement includes fulfilling professional obligations, including “ service to the discipline. ” It was unreasonable to conclude that Dr.

Szostak ’ s created these records as part of his employment duties, and to conclude further from that the University created the records. [ 98 ] Similarly, the University ’ s mandate, even if it had been validly enacted at the time, is a broad statement of commitment to research. That does not create a right to records created by a faculty member acting in a volunteer capacity for another entity. A professional who volunteers time with an outside body, even one closely associated with the profession, does not cede to the employer rights to records created in that endeavour.

For example, if records are produced by a lawyer employed by the government on his or her work computer in the course of providing volunteer service to the Canadian Bar Association, the fact that those records were produced by an employee does not give the government a right to either deal with or possess those records. They are akin to the email records in City of Ottawa v. Ontario , 2010 ONSC 6835 . [ 99 ] The facts in the City of Ottawa are similar to those at issue here. The City of Ottawa permitted its employees to use its email system for personal emails, subject to some conditions.

Those included the right to monitor its IT systems for security breaches and non- compliance with city policies and procedures, and for network management reasons. The City had no retention or deletion policy for emails sent and received by employees. This is similar to the University’s computer use policies and its ability to back-up and delete emails. [ 100 ] The employee in question worked as for the City of Ottawa as the City Solicitor and also volunteered on the Board of Directors of the Children ’ s Aid Society (CAS). He used his work email address to send and receive emails related to the CAS.

Those emails were stored on the City ’ s email server. An individual sought disclosure of all emails, letters and faxes sent or received by the employee to and from at CAS. The City refused on the basis that the communications were not related to the employee ’ s duties as the City Solicitor. The Privacy Commissioner ’ s Arbitrator concluded that the city had custody or control of the emails because the City had physical possession of the emails on its server, the City had the authority to regulate the email system, and because the City could

monitor the emails on its system for unauthorized use, any emails on the system were within the City ’ s control. [ 101 ] Molloy J for the Ontario Superior Court of Justice found the decision to be unreasonable, concluding (at para. 53): In my view, it is not reasonable for emails belonging to a private individual to be subject to access by members of the public merely because they are sent or received on a government owned email server. That is not a sensible or logical result whether as a question of fact or a question of law.

The implications for the many thousands of employees who work in government offices across this country are staggering. [ 102 ] Further, it was unreasonable to infer that the University had a right to possess the records based on the technical support analyst ’ s evidence. His evidence that the University can monitor emails in “ extraordinary circumstances ” is true of all employers. Further, a Conditions of Use Policy is also something that virtually all employers will employ.

Neither of these factors are reasonable considerations in determining whether a public body has the right to possess personal email records outside of the extraordinary circumstances. Molloy J in City of Ottawa looked at a similar arrangement in which Ottawa had a Responsible Computing Policy and City ’ s right to access assets and information and compared this with an employee keeping hard copies of personal information in filing cabinets. At para. 42, he noted: Employers from time to time may also need to access a filing cabinet containing an employee's personal files.

That does not make the personal files of the employee subject to disclosure to the general public on the basis that the employer has some measure of control over them. The nature of electronically stored files makes the need for monitoring more pressing and the actual monitoring more frequent, but it does not change the nature of the documents, nor the nature of the City's conduct in relation to them.

It does not, in my view, constitute custody by the City, within the meaning of the Act. [ 103 ] The second factor articulated by the Adjudicator – does the University have some responsibility for the care and protection of potentially responsive records – is not one of the factors previous jurisprudence has identified. It is not unreasonable for an Adjudicator to identify further factors, and in the right circumstances the question of whether a public body has some obligation to “ care and protect ” records may be relevant to the question of custody or control.

In these circumstances, the evidence was simply that the University backs up its server regularly. It was unreasonable to infer custody or control of the records from such a routine and ordinary step taken for all records, not just these specific records. [ 104 ] Further, the Adjudicator did not consider the other factors set out in the jurisprudence. It is not unreasonable to choose to consider only some of the factors in the appropriate circumstances; it is, however, unreasonable to fail to consider the most relevant factors.

As noted by the University, there were a number of relevant factors that the Adjudicator failed to consider that demonstrated that the records were not in its custody or control. Dr. Szostak created these records at the direction of SSHRC and not within the context of his employment, therefore it cannot be said that the records were created by employee of the public body. Further, Dr. Szostak ’ s intended the document be used and provided to SSHRC personnel and remain confidential. He did not intend that it would be used by the University. [ 105 ] The University did not have possession of the records.

Employees may keep private items at the place of work without them falling within the employer ’ s possession and custody. [ 106 ] In a very general sense the content of the records relates to the public body ’ s mandate and function, but is much more intimately connected to the mandate and function of a federal public body. As noted in Simon Fraser University , it would be inappropriate to find that records are under the control of the two different organizations subject to two separate legislative regimes respecting privacy (at para. 81).

In my view, only one organization can have the best claim to custody or control, and in this case, SSHRC is the most appropriate. [ 107 ] I also agree with the University that it was unreasonable to examine whether the public body is an institution that approves and encourages the work of an external organization. That question does not actually address custody or control. A public body may approve and support external organizations without that general approval and support somehow triggering public access to records that are not directly related to the public body ’ s operations.

Public bodies will often encourage and support its employees ’ participation in external organizations, like professional associations and charitable organizations. An employee may well participate in an organization

that has some relationship to his employment duties; for example a lawyer may be involved with the Law Society and an accountant may do the audit for a non-profit society. The public body may, in a general way, encourage such participation by allowing time off for these duties and by promoting active professional development as part of one ’ s employment, but that does not bring those activities within the public body ’ s functions. The appropriate approach is to determine whether the record in question relates to the business of the public body.

The Adjudicator ’ s approach failed to ask that question. [ 108 ] The University argues that computer use policies and document retention strategies are not relevant to documents an employee creates and holds in their personal capacity. I disagree with the U of A on this point, as the computer use policy is aimed at improper personal use as well as improper professional use - likely child pornography sent by email would come within the University ’ s computer use policy. Therefore, the University has some authority to regulate the record ’ s use under the computer use policy.

However, SSHRC was the body that exerted express control on the use of these particular records. It was unreasonable to focus on the general computer use policy, rather than considering the particular records in question. [ 109 ] The Adjudicator looked to the decision in WLU .

However, Wilfred Laurier ’ s computer use policy exhibits very strict control over the use of computing and communication facilities, specifying that they cannot be used for outside purposes, while the University ’ s policy, much like the policy in the City of Ottawa, is broader and provides no restrictions on use for limited personal use. [ 110 ] Further, there is no evidence that the University relied on the records or integrated them. In fact, the evidence was that the records were always intended to be held temporarily and then deleted.

I take the University ’ s argument that its ability to delete the records is irrelevant to mean that just because the University had a general authority to destroy back-up tapes of all email passing through its server, did not mean it had the specific authority to delete the particular record in question. I agree, because Dr. Szostok had the ability and intention to delete the records, and any residual ability of the University to destroy back-up tapes is not evidence of the University ’ s authority to dispose of the record. d. Dr. Oleynik ’ s Argument [ 111 ] Dr.

Oleynik argued that if neither the University or SSHRC have custody or control, there was a legislative hole in

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