Association of Academic Staff of the University of Alberta v University of Alberta, 2012 ABQB 248

Court of Queen ’ s Bench of Alberta Citation: Association of Academic Staff of the University of Alberta v University of Alberta, 2012 ABQB 248 Date: 20120416 Docket: 1003 08133 Registry: Edmonton Between: Association of Academic Staff of the University of Alberta Applicant - and - The Governors of the University of Alberta, Information and Privacy Commissioner and Dr. Anton Olenik Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ Introduction [ 1 ] This case is about whether, for the purposes of provincial freedom of information legislation, an academic staff association is a person affected by a request for access to email records of one of its members in relation to his voluntary participation in a peer-review grant process under a Federal government program.

[ 2 ] The Association of Academic Staff University of Alberta (AASUA) seeks judicial review of a 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 Respondent, the University of Alberta (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 and control of the U of A, the Adjudicator asked the parties to provide the Faculty Agreement (the Faculty Agreement) between the U of A and AASUA, and answer questions in regards to its

interpretation. AASUA asserts 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, and that in failing to do so, she breached the duty of fairness or, alternatively, unreasonably exercised her discretion under s. 67 of FOIPPA to name AASUA as an affected party. 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 University 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 2011, I ordered that the two judicial review applications be heard concurrently, and that AASUA's judicial review would proceed first, 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, 2011 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, 2011. Reasons for both are being issued at the same time. These are the reasons in AASUA's judicial review. [ 7 ] At issue here is AASUA's application to seek judicial review on the sole ground permitted by Justice Moreau: – [T]he Adjudicator failed to give notice to the Applicant and failed to give the Applicant any opportunity to present evidence or argument before construing the Faculty Agreement to which the Applicant is a party. Facts 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, but did not explain the process it went through in reaching this conclusion. 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; no affected parties under s. 67 of FOIPPA 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.

After receipt of the parties' submissions, the Adjudicator directed the University to answer specific questions, including detailed questions about the University's mandate and about the Faculty Agreement. These questions arose within the context of the Adjudicator's review of an unrelated decision by the Ontario Information and Privacy Commissioner Order PO-2936, Wilfred Laurier University, 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. [ 12 ] In its judicial review application, AASUA argues 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. 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 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. Standard of Review [ 14 ] AASUA argues that the Adjudicator's failure to address whether there were affected parties entitled to notice of the hearing and entitled to present evidence or argument was a breach of the duty to be fair. This, it argues, does not require an assessment of the standard of review, citing Moreau-Bérubé v.

New Brunswick (Judicial Council) , 2002 SCC 11 , [2002] 1 S.C.R. 249 at para. 74 : – Evaluating whether procedural fairness, or the duty of fairness, has been adhered to by a tribunal requires an assessment of the procedures and safeguards required in a particular situation. [ 15 ] In the alternative, AASUA submits that if the Court concludes that the Adjudicator addressed her mind to the question of whether there were affected parties, judicial review of her exercise of discretion is subject the standard of reasonableness. AASUA then asserts that because the Adjudicator had no expertise in the

interpretation and application of collective agreements, no deference should be afforded to the Adjudicator. [ 16 ] The University agrees that s. 67 of FOIPPA gives an Adjudicator discretion to determine whether a person should be named as an affected party. It argues, however, that AASUA conflates the question of reasonableness of the exercise of the Adjudicator's discretion with the standard of review of the Adjudicator's

interpretation of the Faculty Agreement. The Adjudicator's

interpretation of the Faculty Agreement is not in issue here, only the question of whether procedural fairness required that AASUA be notified or whether the Adjudicator exercised her discretion reasonably. [ 17 ] The University further argues that because FOIPPA provides a broad discretion to the adjudicator that is subject to a reasonableness standard, the standard of review for any breach of the duty to be fair must also be subject to the same standard. [ 18 ] In my view, there are two discrete issues here.

The first is whether the duty to be fair required that AASUA be provided notice and an opportunity to make submissions. The duty to be fair does not invoke a standard of review: Moreau-Bérubé v New Brunswick (Judicial Council) . A breach of the duty to be fair results in quashing the decision. [ 19 ] The exercise of discretion is subject to the standard of reasonableness: Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 at para 53 .

Parties' Submissions AASUA [ 20 ] AASUA identifies two issues: the Adjudicator's failure to give notice to AASUA and her failure to give AASUA an opportunity to present evidence and make submissions before interpreting the Faculty Agreement. In regards to the Adjudicator's failure to give AASUA notice, AASUA submits that either the Adjudicator failed to address her mind to whether there were any affected parties, and alternatively, that if she did consider the question of whether there were any affected parties, her decision was unreasonable. [ 21 ]

Section 67 of FOIPPA provides: –

67(1) On receiving a request for a review, the Commissioner must as soon as practicable (

a) give a copy of the request (

i) to the head of the public body concerned, and (ii) to any other person who in the opinion of the Commissioner is affected by the request, and (

b) provide a

summary of the review procedures and an anticipated date for a decision on the review (

i) to the person who asked for the review, (ii) to the head of the public body concerned, and (iii) to any other person who in the opinion of the Commissioner is affected by the request. [ 22 ] AASUA asserts that it would be affected by the request because potentially any faculty member using the U of A's email server would be affected by a precedent set by the Adjudicator's decision, and AASUA represents these faculty members' interests, both individually and collectively. [ 23 ] Further, AASUA argues that it was the Adjudicator who specifically asked the parties to address whether the Faculty Agreement contemplated participation in committees like the SSHRC , and if so, whether this meant that the U of A had custody and control of emails in its server created as part of the faculty member's role on the committee.

As a party to the Faculty Agreement, any

interpretation of the Agreement which sets a precedent potentially affect all AASUA members. Moreover, the Adjudicator considered only a portion of the Faculty Agreement and did not have before her the entire agreement to be interpreted in context.

As well, the Adjudicator did not consider the unique relationship between the faculty and the U of A and made findings that affected their employment relationship. [ 24 ] Finally, assuming that the Adjudicator did consider whether there were any affected parties, AASUA submits that the Adjudicator gave no reasons for the decision, and thus it is unreasonable as “ not justified, transparent or intelligible. ” Had AASUA received notice of the access request, it would have realized that it had a different

interpretation of the Faculty Agreement than that submitted by the U of A, and it would have argued that the proper forum for the

interpretation of the Faculty Agreement was the dispute resolution process set out in the Faculty Agreement. [ 25 ] In regards to the second issue, AASUA says that had it had an opportunity to present evidence and make submissions, it would have argued that participation in committees like SSHRC fall within the course of employment under the Faculty Agreement, but that the emails are not within the U of A's custody and control because of the unique employment relationship between the U of A and its faculty that includes academic freedom, in contrast to the U of A's position that participation in such committees did not fall within the employment relationship.

The U of A made no submissions to the Adjudicator in regards to academic freedom. U of A [ 26 ] The U of A notes that there is no evidence or indication that the Adjudicator did, or did not, consider whether there were any parties affected by the access request, and that any analysis of that question is purely speculative. Further, it notes that s. 67 of FOIPPA provides a very broad discretion, noting that the language of the provision – “ in the opinion of the Commissioner... ” – goes well beyond the permissive “ may ” .

[ 27 ] The U of A further argues that it is necessary to first identify whether AASUA is one “ who is affected by the [access] request, ” and cites the Commissioner's Decision F2008-D-0003, Edmonton Police Commission . In that decision, an adjudicator determined that an affected party is both someone who is entitled to notice under s. 30 of FOIPPA (third party notice from the public body) and persons who are affected by the request for review. The adjudicator concluded that the Chief of Police and the Edmonton Police Service (EPS) were affected parties on the basis of the third party personal privacy criteria in s. 17(5) (

a) of FOIPPA , and because the disclosure of the record would affect their ability to carry out their functions. The adjudicator also noting the following: – 1. The fact that EPS created the record did not create a direct interest in the records; 2. The fact that EPS is in a better position to argue on behalf of individuals who are affected parties does not make EPS an affected party; 3.

The ability to give evidence in relation to the circumstances in which the records in question were created does not necessarily lead to the conclusion that a person is affected by the request for review. [ 28 ] The U of A notes that AASUA did not create the records in question and disclosure of the records would not affect it or its activities. Further, AASUA is in no better position than the University to represent Dr. Szostak's interests, and AASUA has no direct evidence in relation to the circumstances in which the records were created.

ASUA's only attempt to identify how it is affected by the decision is to say that if it had notice, it would have provided evidence and submissions as to the proper

interpretation of the Faculty Agreement. [ 29 ] In addition, the U of A argues that there is no evidence in support of AASUA's submissions that involvement in an association or committee falls within the course of employment and no evidence that AASUA's submissions would have had an effect on the Adjudicator's decision.

In particular, the U of A notes that the Adjudicator concluded that service on the SSHRC falls within service to the discipline under the Faculty Agreement (at para. 41) and that therefore the Adjudicator essentially reached the same conclusion that AASUA argues it would have argued – that SSHRC participation falls within the employment relationship under the Faculty Agreement. [ 30 ] Moreover, the U of A argues that the Adjudicator's inquiry is not concerned with the labour relations between it and AASUA; this was not a dispute between the U of A and AASUA.

Its submissions to the Adjudicator constituted a legal analysis distinguishing this case from another Ontario decision dealing with a different faculty agreement and university. The U of A particularly takes issue with AASUA's assertion that the Adjudicator has no jurisdiction to consider the Faculty Agreement in connection with the access request, and that she should have referred the question to the dispute resolution process under the Faculty Agreement. It agrees that the proper forum for resolving disputes over collective agreement

interpretation is grievance arbitration, but that does not make AASUA an affected party. [ 31 ] The U of A also argues that the Adjudicator's inquiry was about the University's duty to assist under s. 10(1) of FOIPPA , and that the

interpretation of the Faculty Agreement by the Adjudicator did not determine faculty members' obligations under the agreement, only whether the University failed in its duty to assist by providing records in its custody and control.

The U of A notes that in such an inquiry, only the University has the onus to prove it met its duty to assist an applicant. [ 32 ] Finally, the U of A argues that if AASUA is correct, it would mean that the Commissioner would have to exercise discretion and name a union as an affected party whenever a union member's records are the subject of an access request, importing a labour relations element into FOIPPA . Further, such a finding could conceivably then include anyone who has a representative capacity for a person whose records are the subject of an access request, including lawyers, trustees, and guardians.

It could also mean that AASUA would be entitled to third party notice under s. 30 of FOIPPA , even if the faculty member did not want AASUA to be involved. Analysis

Is AASUA affected by the access request? [ 33 ] In my view, the first step in this analysis is to determine whether AASUA is someone who is affected by the access request within the meaning of s. 67 . If it is not an affected party under s. 67 , there is no basis for assessing the Adjudicator's exercise of discretion, and there is no basis for asserting a breach of procedural fairness and natural justice by the failure to give it notice or provide it with an opportunity to present evidence or make submissions. [ 34 ] In Alberta (Minister of Employment and Immigration) v.

Alberta Federation of Labour , 2009 ABQB 344 , 473 AR 49 ; aff'd 2010 ABCA 304 ; 490 A.R. 208, Binder J discussed the relationship between ss. 30 and 67 of FOIPPA , noting that an affected party under s. 67 is broader than a third party under s. 30 . A third party under s. 30 is a party whose interests are affected under s. 16 (trade secrets or commercial, financial, labour relations, scientific or technical information) or whose personal privacy may be invaded under s. 17 by the disclosure of personal information.

AASUA does not fall within these categories; disclosure of the record will not affect its interests under s. 16, including labour relations, and it does not have any personal information in the record. [ 35 ] The decision in Edmonton Police Commission F2008-D-0003 sets out criteria for determining whether someone is affected by a records request under s. 67, including whether disclosure of the record would affect the person's ability to carry out their function, and further sets out what is not relevant to the determination.

As noted by the U of A, the fact that AASUA may be in a better position to argue on behalf of Dr. Szostak does not make it an affected party. Further, even if AASUA's evidence in regards to the Faculty Agreement related to the circumstances in which the records were created, that does not give it an interest in the inquiry as to whether the records are in the custody and control of the University. [ 36 ]

Section 67, read in context, says that the Commissioner may give notice to any person who is affected “ by the request ” . The “ request ” is a request by an applicant for access to personal information in a record in the custody and control of a public body. AASUA's assertion is that it is affected by the analysis undertaken by the Adjudicator that examined the Faculty Agreement; thus it is not affected by the request for access to the records in question.

Its submission is that it is an affected person because the precedential finding that the records were in the University's custody and control could affect other AASUA members. [ 37 ] In my view, simple statutory analysis answers the question. AASUA is not affected by the request; it has no interest in the record, it did not create the record, and its operations are not affected by the disclosure of the record.

Its submission misses the point of the clear language of the statute – an affected person is one who will be affected by the applicant's access to the record, not one who may be affected by the analysis undertaken by the Commissioner or an adjudicator. [ 38 ] In any event, I will address AASUA's submissions regarding the Adjudicator's exercise of discretion and the duty of fairness. Did the Adjudicator exercise her discretion? [ 39 ]

Section 67 of FOIPPA provides the Adjudicator with a very broad discretion in determining whether a party is affected by the access request. AASUA argues that the if the Adjudicator addressed the issue, it was an unreasonable conclusion because of the absence of reasons. The U of A submits that there is no evidence as to whether the Adjudicator addressed the question of who was an affected part. [ 40 ] In a recent decision by the Supreme Court of Canada, Alberta (Information and Privacy Commissioner) v.

Alberta Teachers' Association , 2011 SCC 61 , Rothstein J concluded that although the Commissioner did not expressly address whether an inquiry was terminated by extension of a time limit, after the expiry of that limit, he implicitly reached that conclusion by continuing the inquiry. The Court held that this implicit decision was subject to the same standard of review that would have applied if reasons had been given.

Where a tribunal's decision is implicit, the reviewing court cannot apply the test of whether the reasons were justified, transparent and intelligible, but the Court can consider whether there was a reasonable basis for the decision. [ 41 ] Rothstein J noted that where the issue was not raised before the tribunal, it may be necessary to remit the matter back to the tribunal to give it an opportunity to give its own reasons.

He notes, however, that remitting the issue may undermine the goal of expedient and cost-efficient decision making, and that therefore when there is a reasonable basis for the decision, the Court may simply

uphold the decision. At para 55:– Indeed, when a reasonable basis for the decision is apparent to the reviewing court, it will generally be unnecessary to remit thedecision to the tribunal. Instead, the decision should simply be upheld as reasonable. On the other hand, a reviewing court should showrestraint before finding that an implied decision on an issue not raised before the tribunal was unreasonable. It will generally beinappropriate to find that there is no reasonable basis for the tribunal's decision without first giving the tribunal an opportunity to provideone.

This, of course, assumes that the Court has thought it appropriate in the particular circumstances to allow the issue to be raised forthe first time on judicial review. Care must be taken not to give parties an opportunity for a second hearing before a tribunal as a resultof their failure to raise at the first hearing all of the issues they ought to have raised. [42] In my view, the Adjudicator implicitly decided that there were no other persons affected by the access request. It was notnecessary for her to expressly give reasons for such a conclusion, and based on my

interpretation of s. 67, it was reasonable for her toreach that conclusion. Did the Adjudicator breach the principles of procedural fairness? [43] AASUA asserts that the Adjudicator breached the duty to be fair when it considered the Faculty Agreement, without givingnotice to both parties to the Agreement. In particular, it notes that its members' interests could be affected by the precedent set by theAdjudicator.

It asserts that the Adjudicator made findings which affect the employment relationship between the U of A and AASUAmembers. [44] The duty of fairness is triggered when a decision is administrative and affects “the rights, privileges or interests of anindividual”: Cardinal v. Director of Kent Institution, (SCC), [1985] 2 SCR 643, at p. 653; Baker v. Canada (Ministerof Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at para. 20. This was not a dispute between the U of A andAASUA that affected AASUA's rights, privileges or interests.

This was a question of whether the University met its obligations underFOIPPA to assist an applicant requesting access to records. AASUA's interests were not affected and the Adjudicator's

interpretation ofthe Faculty Agreement is not binding on, for example, a grievance arbitrator under the Faculty Agreement. The precedent it sets willapply to future access requests under FOIPPA, but that is not sufficient to affect AASUA's rights, privileges or interests. [45] AASUA suggests that the Adjudicator should have directed that the dispute regarding the correct

interpretation of the FacultyAgreement be resolved under the dispute resolution mechanism in that Agreement. This misapprehends the true nature of the dispute.There was no dispute requiring a grievance arbitration in the labour relations sense, and to import the labour relations concept into thisforum would unnecessarily complicate and delay the resolution of access requests. [46] Order PO-3009-F, University of Ottawa, a decision by an Ontario Adjudicator under the Freedom of Information andProtection of Privacy Act, RSO 1990, c.

F.31 (FIPPA) addressed a situation where a grievance was filed by the Professors of theUniversity of Ottawa (APUO) after the University requested that professors turn over potentially responsive records following an accessrequest under FIPPA. Adjudicator Smith examined whether there was concurrent, overlapping, or exclusive jurisdiction between anadjudicator under FIPPA and an arbitrator in a grievance. Smith applied Supreme Court of Canada jurisprudence in Weber v.

OntarioHydro, (SCC), [1995] 2SCR 929 and Quebec (Commission des droits de la personne et des droits de la jeunesse) v.Quebec (Attorney General), 2004 SCC 39 and concluded that the essential character of the dispute was a request for records access andthat the legislature intended that a dispute regarding access to records was to be decided under the legislation and not under the collectiveagreement. [47] In this case, no grievance was filed and the U of A did not ask Professor Szostak to turn over responsive records; it onlyindicated whether there were any responsive records.

The issue of which tribunal has jurisdiction, therefore, is not raised on these facts.Nor can that be an issue before this Court, given Justice Moreau's order limiting the issue in this judicial review to whether AASUA wasentitled to notice and to make representations before the Adjudicator. However, in response to AASUA's assertion that the

interpretationof the Faculty Agreement should somehow have been severed and remitted to the dispute mechanisms under the Faculty Agreement, Icomment that Adjudicator Smith's analysis is appropriate. The true nature of this dispute is about access to records under FOIPPA, not alabour relations dispute between the parties to the Faculty Agreement. [48] AASUA then argues that the Adjudicator misapplied the principles of interpreting collective agreements, which require that

[ 48 ] AASUA then argues that the Adjudicator misapplied the principles of interpreting collective agreements, which require that the agreement be considered as a whole. It further argues that

interpretation of a contract is about discovering the author's intention, and that that cannot be accomplished in the absence of one party to the agreement and constitutes an error of law. This argument does not assist AASUA's submissions on procedural fairness, and is also inconsistent with Justice Moreau's direction that this judicial review be restricted to the issues of whether the Adjudicator should have given AASUA notice and an opportunity to be heard; the merits of the Adjudicator's decision will be addressed in the U of A's judicial review.

AASUA has intervener status in that application and can address its concerns in that venue. Conclusion [ 49 ] AASUA's application for judicial review is dismissed. Heard on the 16 th day of November, 2011. Dated at the City of Edmonton, Alberta this 13 th day of April, 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