Bonsma v. Alberta (Information and Privacy Commissioner), 2012 ABQB 294

Court of Queen ’ s Bench of Alberta Citation: Bonsma v. Alberta (Information and Privacy Commissioner), 2012 ABQB 294 Date: 20120508 Docket: 1103 08500 Registry: Edmonton Between: Clarence J.

Bonsma Applicant - and - The Office of the Information and Privacy Commissioner and Her Majesty the Queen in Right of Alberta as represented by Alberta Employment and Immigration Respondents Corrected judgment: A corrigendum was issued on May 10, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.M. Ross _______________________________________________________

Introduction [ 1 ] This is an application for judicial review of Order F2010-029 (the “Decision”) issued by the Office of the Information and Privacy Commissioner (“OIPC”) on April 21, 2011 in respect of Case File Number F4977 under which Mr. Bonsma (the “Applicant”) asked for a review of the decision of Alberta Employment and Immigration (“AEI” or the “Public Body”) which denied him access to certain information related to his former employer, Tesco Corporation (“Tesco”). The OIPC Decision ordered AEI to give the Applicant access to the information responsive to his access request.

The Applicant seeks judicial review of the decision. Background Facts [ 2 ] The Applicant made an access to information request on March 18, 2009 to AEI under the Freedom of Information and Protection of Privacy Act , RSA 2000, c F-25 (“ FOIPPA ”). He sought access to information dealing with the “number, date, reason and settlement (outcome) of Employment Standard[s] complaints against Tesco Corporation.” [ 3 ] By a letter dated April 9, 2009, the Applicant was informed that the requested information may affect the interest of Tesco and AEI would be consulting with it.

Later, in a letter dated May 14, 2009, the Public Body informed the Applicant that his access request was denied on the basis of section 16(1) of FOIPPA (“AEI decision”) and advised that the Applicant had the right to ask the Information and Privacy Commissioner to conduct a review of the decision under

section 65 of FOIPPA . Subsequently, AEI wrote another letter dated June 1, 2009 to the Applicant indicating that it had specifically applied “sections 16(1)(a)(ii), (

b) and (c)(iii)(iv).” [ 4 ] The Applicant requested a review of the AEI decision in his letter dated June 8, 2009 to the OIPC. A portfolio officer was authorized by the Commissioner to investigate and attempt to settle the matter. This process was unsuccessful. The Applicant then requested an inquiry by a letter dated November 20, 2009, which was eventually set down. [ 5 ] Commencing with a Notice of Inquiry dated August 30, 2010, a lengthy inquiry process ensued before an Adjudicator. Multiple written submissions were received from the Applicant, AEI and Tesco.

The details of the sequence of events appeared in the Brief of the Applicant. Significantly, the Applicant notes with concern the submission of AEI’s final rebuttal on November 22, 2010 which included Affidavits that, he alleged, made claims about certain statements he was said to have made on or about March 18, 2009.

Ultimately, the Applicant was able to submit “an inquiry variation request, the required notice and a sworn Affidavit dated January 10, 2011” to the Adjudicator in order to make a “correction to the personal information” in the claims by the officials of AEI. [ 6 ] At the end of the inquiry, the Adjudicator issued the Decision which is under review in the within application. That decision overturned AEI’s refusal to grant the Applicant access to the requested information.

In the Decision, the Adjudicator found at paras 139 - 142 that: [para 139] ... the Public Body complied with its duty under section 12(1), including its obligation to give the Applicant reasons for refusing to grant him access to the requested records. [para 140] ... the Public Body complied with its duty to assist the Applicant under section 10(1) of the Act. [para 141] ... section 16(1) of the Act does not apply to the information requested by the Applicant, as disclosure would not be harmful to the business interests of the Affected Party. [para 142] ... section 17(1) of the Act does not apply to the information requested by the Applicant, as it does not consist of the personal information of identifiable individuals.

Alternatively, disclosure of the information would not be an unreasonable invasion of their personal privacy.

[ 7 ] The Adjudicator then ordered AEI to give the Applicant access to the information responsive to his access request which were stipulated (at para 143 of the Decision) to include: [para 8] ... the number of complaints against the Affected Party (which is evident by counting the number of them appearing in the records), the date of each complaint (which appears on each screenshot as the date that the complaint was “Registered”), the reason for each complaint (which is indicated on each screenshot in that there is a check mark in a box with an accompanying code, or abbreviation), and the settlement/outcome of each complaint (which appears on each screenshot as the “Status” and “Conclusion Reason”). [para 9] ... the “Claim Registered” date, and the last line of information under the heading “Description”, which indicates the outcome of the claim. [para 10] ... the information under the headings “Status” and “Operating Name” in all but the first three lines.

This information again indicates the number of complaints against the Affected Party, and their outcomes. [ 8 ] The Applicant accepts that the information ordered to be disclosed is responsive to his access to information request. He does not seek judicial review in regard to this central aspect of the Adjudicator’s decision. Issues [ 9 ] This application raises the following issues: 1. What is the basis for the application, given that the Adjudicator ordered that the Applicant was entitled to access to the information he sought? 2. Should the Court decline judicial review on the grounds of mootness or otherwise?

Parties ’ Positions Applicant ’s Submissions [ 10 ] The Applicant, who is self-represented, disagrees with the finding of the Adjudicator that the Public Body fulfilled its obligation to give reasons for refusing to grant access to the requested records.

He further contends that the Affidavits of AEI officials provided with their final rebuttal should have been provided earlier through either of the AEI letters (i.e. dated May 14, 2009 and/or dated June 1, 2009) which informed him of the denial of his access request, prior to the involvement of the OIPC. [ 11 ] He also disagrees with the Adjudicator’s finding that the AEI complied with its duty to assist the Applicant.

He claims that AEI delayed making a claim about his “March 2009 conversation.” He argues that this type of conduct by the Public Body should be discouraged. [ 12 ] The Applicant expresses partial satisfaction with the Adjudicator’s finding that section 16(1) of the Act does not apply to the requested information, as disclosure would not be harmful to the business interests of the Affected Party. However, he has concerns with the Adjudicator’s “analysis” which failed to “make a decisive statement reflecting that section 16(1)(

b) also does not apply and never will.” The Applicant criticizes the Adjudicator’s conclusions as “too vague and non-inclusive” in certain areas and requiring “reconsideration” in other areas. The Applicant is also concerned that the Adjudicator “did not agree with [his] assertion that Code

enforcement records are not labour relations information” and he “discourages” the Adjudicator’s “broad generalizations” and“wordings”. [13] The Applicant sums up the basis for his judicial review application as that “[d]espite the Adjudicator’s decision ordering therelease of the records it was clear that the Public Body would continue to oppose access to similar type records.” He says that “[i]t isimperative that the Public Body realizes/accepts that any similar access requests should not be denied under sections 16(1)(

b) and/or17(1) and that the OIPC process cannot be used as a tactic to delay access.” He seeks as relief that this court “renders a conclusivedecision as to the applicability of section 16(1)(

b) to the records at issue so that similar type requests are honoured in a forthright mannerby the [AEI] without the need for the OIPC intervention.” Respondent’s Submissions [14] The Respondent AEI contends that this application is primarily about the Applicant’s dissatisfaction with the reasons of theAdjudicator.

AEI argues that while reasons are considered in order to determine whether they support a decision or not, they are notthemselves subject to review absent a challenge to the decision: Libby, McNeill & Libby of Canada Ltd v UAW (1978), (ON CA), 21 OR (2d) 362 at para 3 (CA)(available on WL Can) [Libby]; Laviolette v CJA, Local 1023 (1998), (NB CA), 199 NBR (2d) 270 at para 11 (CA)(available on WL Can)[Laviolette]; cited in, Sara Blake, Administrative Law in Canada,3rd ed (Makham, Ont: Butterworths, 2001) at 183; UES, Local 298 v Bibeault, (SCC), [1988] 2 SCR 1048 at para 127,35 Admin LR 153 (QL). [15] Regarding the Applicant’s complaints relating to the Public Body’s duty to assist and duty to give reasons, the RespondentAEI submits that these issues are moot.

The Adjudicator ordered disclosure of the information to the Applicant and there wouldtherefore be no point in ordering AEI to provide further assistance or reasons to the Applicant at this time: Borowski v Canada (AttorneyGeneral), (SCC), [1989] 1 SCR 342 at paras 15, 34 (QL), 57 DLR (4th) 231 [Borowski ]; Statham v CanadianBroadcasting Corporation, 2010 FCA 315 at paras 28-30 [Statham].

Analysis [16] It has been held that, as a matter of law, courts have complete discretion to dismiss an application for judicial review on theground of mootness: Statham; Canada (Information Commissioner of Canada) v Canada (Minister of National Defence) (1999), 240NR 244 (FCA) at para 25. [17] Guidance regarding the exercise of that discretion is found in Borowski.

The Supreme Court of Canada outlined a two-stepanalytical process: “[f]irst it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issueshave become academic; [s]econd, if the response to the first question is affirmative, it is necessary to decide if the court should exerciseits discretion to hear the case” (at para 16).

In exercising its discretion, the court should consider at least three factors: the presence of anadversarial context, the concern for judicial resources and the awareness of the court’s proper law-making function: Graff v Alberta(Energy and Utilities Board), 2007 ABCA 363 at para 4; Borowski at paras 31-42. [18] The tangible and concrete issue in this matter relates to the Applicant’s access to information dealing with the “number, date,reason and settlement (outcome) of Employment Standard[s] complaints against Tesco Corporation” in the custody of the RespondentAEI.

On April 21, 2011, the OIPC issued Order F2010-029, that is the Decision under review in this application, in which the Applicantwas granted access to the information that he sought from the Respondent AEI. The Adjudicator in the Decision ordered AEI to give theApplicant access to the information responsive to his access request as identified: at para 143.

In view of the Adjudicator’s order, I findthat the concrete and tangible dispute between the Applicant and the Respondent has disappeared as his right to access the informationsought from AEI is no longer in issue. [19] In Wiebe v Alberta (Labour Relations Board), 2001 ABCA 192, 204 DLR (4th) 169 [Wiebe], the appellant and some otheremployees sought decertification of a union local as the employees' bargaining agent before the Labour Relations Board. The Board’sdecision to dismiss the application was upheld on judicial review. They appealed to the Alberta Court of Appeal.

In the interim, theBoard decertified the union local. The Court of Appeal dismissed the appeal as moot for the reasons that, the appellants:

...have got what they wanted (decertification), and the substantive dispute is over. Their rights are no longer in issue ... [O]ur judgment could not lead to the union local's decertification or recertification for these employees. Nor could it open any road (previously closed) for the Board to do either thing. The [appellants] have no interests more likely to be affected by a substantive decision of this appeal, than has any other Alberta employee who is not represented by a union ... An appeal is moot whether or not it suggests general questions of law or jurisdiction which could affect non-parties.

Given the laws of precedent, most appeals suggest such questions ( Wiebe , at paras 9-11 ). [ 20 ] The Applicant in this matter has got what he wanted, i.e. access to the information in AEI’s custody. His concerns about the likelihood of the Public Body’s continuing opposition of “access to similar type records” and the need to ensure that in future “any similar access requests should not be denied under sections 16(1)(

b) and/or 17(1) and that the OIPC process cannot be used as a tactic to delay access” are academic in nature. These issues do not affect his interests any more than the interests of any other Albertan. His judicial review application is moot notwithstanding that it may raise general questions of statutory

interpretation and law (including the legal ramifications of the duty to assist and duty to give reasons): Wiebe at paras 10-11 . [ 21 ] I also agree with the Respondent that at the core of this judicial review application is the Applicant’s dissatisfaction with the Adjudicator’s reasons. While reasons are considered in order to determine whether they support a decision, they are not themselves subject to review absent a challenge to the decision: Libby at para 3 ; Laviolette at para 11 .

The present application is misdirected at the Adjudicator’s reasons rather than the decision granting him access to the information he sought. [ 22 ] In respect of the Applicant’s concern with late filing and provision to him of Affidavits of the Respondent’s officials which made claims about “a March 2009 conversation” and to the extent that the allegation involves questions of procedural fairness, I am satisfied that the Adjudicator acted fairly and correctly by providing the Applicant with the opportunity to submit an inquiry variation request and a sworn Affidavit (dated January 10, 2011) which enabled him to make a “correction to the personal information” in response to the claims by the officials of the Respondent AEI. [ 23 ] I therefore conclude that the within judicial review application is moot. [ 24 ] The second step of the analysis in Borowski requires that I consider whether to exercise my discretion to decide the moot application.

Three factors are relevant: the presence of an adversarial context, the concern for judicial resources and the awareness of the court’s proper law-making function: Graff at para 4 ; Borowski at 353, 358-363. [ 25 ] The requirement for an adversarial context recognizes that it “is a fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome”: Borowski , at para 31 . There remains an adversarial context in this matter, although it is limited to some extent.

While the Applicant has continued to present his case for judicial review, neither AEI nor Tesco seek to challenge disclosure of the information as ordered by the Adjudicator. AEI was represented on the judicial review application by Alberta Justice. The primary thrust of their submissions related to the issue of mootness; although they did submit, in the alternative, that the Adjudicator’s decision was reasonable. I conclude that the adversarial context is sufficient to permit the Court to decide the application. [ 26 ] The second factor is the need to promote judicial economy.

As stated by the Supreme Court of Canada: “It is an unfortunate reality that there is a need to ration scarce judicial resources among competing claimants. . . The concern for judicial economy as a factor in the decision not to hear moot cases will be answered if the special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve it” ( Borowski , at para 34 ). One example of a special circumstance is where the court’s decision will have a practical effect on the rights of the parties.

Another is where the issue to be reviewed is a recurring but time limited issue, that tends to evade court review (such as the validity of an injunction prohibiting strike action). However, the Supreme Court observed that: The mere fact . . . that a case raising the same point is likely to recur even frequently should not by itself be a reason for hearing an appeal which is moot. It is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest

that the dispute will have always disappeared before it is ultimately resolved, ( Borowski , at para 36 ). [ 27 ] The decision which the Applicant seeks will have no practical effects for himself. He is not himself seeking other information from AEI. His concerns are general, and expressed on behalf of other persons who may seek information in the future. The case law makes it clear that the desire to set a precedent for others is not a special circumstance. The Applicant suggests that concerns of the sort he raises will recur.

Accepting this for the sake of argument, this is not a sufficient reason to decide a moot case. Issues relating to access to information under FOIPPA are not evasive of review; the court has many opportunities to resolve these issues in cases in which the parties continue to dispute whether or not information must be disclosed under the legislation. The second factor does not support the exercise of discretion to proceed to decide the application. [ 28 ] The third factor is awareness of the court’s proper law-making function.

The Supreme Court of Canada explained this factor as follows: The court must be sensitive to its role as the adjudicative branch in our political framework. Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch. It was primarily on this ground that the Court declined to hear Mr. Borowski’s application for a declaration that therapeutic abortions violated the Canadian Charter of Rights and Freedoms .

Answering such a question in the abstract would be a “marked departure from the traditional role of the court”( Borowski , at para 47 ). [ 29 ] The issues raised by the Applicant in this case do have a level of abstraction that, in my view, makes them unsuitable for judicial determination. For example, the Applicant wants the Court to state that information such as that he sought, the “number, date, reason and settlement (outcome) of Employment Standard[s] complaints” against a particular employer, is never supplied “in confidence” (s 16(10(b)), and thus cannot be exempt from disclosure under s 16(1).

The Adjudicator did not need to decide this issue, as he determined on another ground that the s 16(1) exemption did not apply. However, he did make the following findings at paras 72-73 of his decision: [72] The information at issue reveals the fact that employment standards complaints were made against the Affected Party [Tesco], along with the number, dates and reasons. . .

In my view, none of this information can be characterized as being supplied in confidence . . . [73] The information at issue also reveals the very general nature of the settlement or outcome of each complaint, such as whether the complaint did or did not have merit, a settlement did or did not occur, or a remedy did or did not result. The mere fact that a complaint had merit or not, accompanied by no details whatsoever, reveals no information that can be characterized as being supplied directly or indirectly in confidence.

On the other hand, it is possible that even the general information about a settlement or remedy might reveal information suppled by the Affected Party in confidence to Employment Standards. While no details are given in the records at issue here, the fact of the settlement or remedy may, in and of itself, be confidential. [ 30 ] While the Applicant would like “a decisive statement reflecting that s 16(1)(

b) also does not apply and never will,” the Adjudicator’s comments reflect the fact that a determination as to whether information was or was not “supplied in confidence” is necessarily fact specific. Similarly, the issues raised by the Applicant regarding sufficiency of reasons and the duty to assist are issues that involve the application of legal principles to case-specific facts. As I have already noted, the Court will undoubtedly have many opportunities to resolve these issues in cases in which there remains a live dispute between the parties.

By awaiting these opportunities, risks associated with hearing a moot judicial review application are avoided, including the possibility of enunciating “a rule of law which hangs together in theory or logic, but is simply impractical” or which is too wide in scope, in the absence of a specific dispute: Wiebe at paras 13-19 . [ 31 ] Having considered the factors outlined in Borowski , I decline to exercise my discretion to decide this moot application on the merits. Disposition

[ 32 ] In the result, this application for judicial review of the decision in Order F2010-029 issued by the Office of the Information and Privacy Commissioner (“OIPC”) on April 21, 2011 is dismissed as moot. Heard on the 30 th day of November, 2011. Dated at the City of Edmonton, Alberta this 7 th day of May, 2012. J.M. Ross J.C.Q.B.A. Appearances: Clarence J. Bonsma Self Represented Litigant Sean McDonough for Alberta Employment and Immigration _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice J.M.

Ross _______________________________________________________ Page 7: Para [25] Lines 6-7 should read as follows: AEI was represented on the judicial review application by Alberta Justice.

Page: 9 Appearance should read as follows: Sean McDonough for Alberta Employment and Immigration