Edmonton Police Service v. Alberta (Information and Privacy Commissioner), 2012 ABQB 595

Court of Queen ’ s Bench of Alberta Citation: Edmonton Police Service v. Alberta (Information and Privacy Commissioner), 2012 ABQB 595 Date: 20120928 Docket: 0903 11404 Registry: Edmonton In the Matter of the Freedom of Information and Protection of Privacy Act , RSA 2000, c F-25, as amended AND in the Matter of Order F2008-027 issued by the Office of the Information and Privacy Commissioner, dated June 9, 2009 Between: Edmonton Police Service Applicant - and - Information and Privacy Commissioner Respondent - and - Criminal Trial Lawyers ’ Association Respondent - and - Minister of Justice and Attorney General of Alberta Respondent

- and - Edmonton Police Commission Respondent - and - Vancouver Police Department Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.M.

Ross _______________________________________________________ Introduction [ 1 ] This is a judicial review application by the Edmonton Police Service (the “Applicant” or “EPS”) seeking to quash the decision issued on June 9, 2009 in Order F2008-027 (the “Decision”) by an Adjudicator (the “Adjudicator”) in the Office of the Information and Privacy Commissioner (the “OIPC” or “Commissioner”) ordering the EPS to disclose certain portions of its Professionalism Committee’s Final Report (the “Report”) to the Criminal Trial Lawyers' Association (“CTLA”).

Initially, the application also sought a declaration that the Commissioner lost jurisdiction when he failed to comply with time lines in section 69(6) of the Freedom of Information and Protection of Privacy Act , RSA 2000, c F-25 (" FOIPPA "). This aspect of the application was abandoned following the Supreme Court of Canada (SCC) decision in Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association , 2011 SCC 61 , [2011] 3 SCR 654 [“ Alberta Teachers' Association ”].

Facts [ 2 ] In 2005, EPS created a Professionalism Committee with a mandate to enhance ethics and professionalism among its members and thereby, foster public trust and confidence in the EPS. The Professionalism Committee sought information from different outside entities including Alberta Justice, the Edmonton Police Commission (“EPC”), the Vancouver Police Department (“VPD”) and the Toronto Police Service (“TPS”). In April 2006, the Professionalism Committee issued the Report which contained information supplied by these outside entities. [ 3 ] CTLA made an access request for the Report on April 20, 2006.

Initially, EPS responded by withholding the entire Report on the basis of FOIPPA , s 24. However, EPS later withdrew this position and released most of the Report to CTLA, subject to certain severed sections which it withheld pursuant to FOIPPA , s 21(1)(b). On October 26, 2006, CTLA requested a review of the EPS response by OIPC.

[ 4 ] By Notice of Inquiry dated November 6, 2007 the Commissioner set the following issue for consideration by the Adjudicator: Did the Public Body properly apply section 21(1)(

b) of the Act (intergovernmental relations) to the records/information? [ 5 ] On January 29, 2009, the Adjudicator determined that EPC and Alberta Justice were parties affected by the inquiry.

Pursuant to s 67(1)(a)(ii) of FOIPPA , they were provided with copies of relevant documents and requested to make submissions on or before March 31, 2009. [ 6 ] On March 31, 2009, EPS contacted VPD and TPS and asked these police services to contact OIPC directly “if they should wish to provide evidence or make submissions regarding the application of s 21 to the Report.” OIPC did not itself initiate contact with these police services directly nor name them as affected parties. However, VPD contacted OIPC and on April 1, 2009 was permitted to provide submissions and evidence to the Adjudicator.

TPS did not participate in the Inquiry. [ 7 ] On June 9, 2009, the Adjudicator completed the Inquiry and issued Order F2008-027 which is the Decision under judicial review. Legislative provisions [ 8 ] The following excerpts of FOIPPA are relevant to this application: Disclosure harmful to intergovernmental relations 21

(1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to (

a) harm relations between the Government of Alberta or its agencies and any of the following or their agencies: (

i) the Government of Canada or a province or territory of Canada, (ii) a local government body, (iii) an aboriginal organization that exercises government functions, including (

A) the council of a band as defined in the Indian Act (Canada), and (

B) an organization established to negotiate or implement, on behalf of aboriginal people, a treaty or land claim agreement with the Government of Canada, (iv) the government of a foreign state, or (

v) an international organization of states, or (

b) reveal information supplied, explicitly or implicitly, in confidence by a government, local government body or an organization listed in clause (

a) or its agencies.

(2) The head of a public body may disclose information referred to in subsection (1)(

a) only with the consent of the Minister in consultation with the Executive Council.

(3) The head of a public body may disclose information referred to in subsection (1)(

b) only with the consent of the government, local government body or organization that supplies the information, or its agency.

(4) This

section does not apply to information that has been in existence in a record for 15 years or more ...

30(1) When the head of a public body is considering giving access to a record that may contain information (

a) that affects the interests of a third party under

section 16, or (

b) the disclosure of which may be an unreasonable invasion of a third party’s personal privacy under

section 17, the head must, where practicable and as soon as practicable, give written notice to the third party in accordance with subsection (4). ... 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. The Adjudicator ’s Decision [ 9 ] The Adjudicator held that s 21(1)(

b) did not apply to the records at issue, and ordered that they be disclosed in their entirety. [ 10 ] There were two grounds for the Adjudicator’s decision. With respect to all of the entities that supplied information to the Professionalism Committee (i.e., Alberta Justice, EPC, VPD and TPS), she held that the information had not been supplied “explicitly, or implicitly, in confidence” and therefore did not come within the scope of s 21(1)(b). [ 11 ] In addition, with respect to information supplied by Alberta Justice, the Adjudicator held that the Government of Alberta was not an entity listed in s 21(1)(a)(

i) to (

v) and therefore did not come within the scope of s 21(1)(b). Regarding EPC, VPD and TPS, she held that the evidence did not make it clear whether these entities were acting as or on behalf of entities listed in s 21(1)(

a) when they provided information. However, she held that she did not have to determine whether these entities came within the scope of s 21(1)(

a) as, in any case, the information was not provided in confidence. Issues [ 12 ] EPS, Alberta Justice and EPC all take issue with the Adjudicator’s

interpretation of s 21(1)(

b) as applying only to those entities listed in s 21(1)(a)(

i) to (v). They also submit that the evidence before the Adjudicator established that the information was supplied in confidence. Further, EPS argue that the Adjudicator breached the requirements of procedural fairness. [ 13 ] I will deal with the second issue before the first, as the interpretive issue is an alternative ground only and unnecessary for me to determine if the Adjudicator’s determination that the information was not supplied in confidence is upheld. In Camera Documents [ 14 ] The Return filed by OIPC initially did not include documents that had been received by the Adjudicator in camera . These

included the records that are the subject of the access to information request, as well as briefs and affidavits filed by various parties on the issue of whether the information referred to in the records had been supplied in confidence. [ 15 ] The Adjudicator referred to in camera documents in her decision, and at the hearing the parties sought to have me refer to them as well.

I directed that I would refer only to documents on the Court record, and that all documents should be included in the open Return, unless they were sealed by Court order. [ 16 ] At a hearing on this issue, OIPC submitted that, in the course of reviewing an access to information request, it is normally not possible to adjudicate the issue without examining the records at issue. Further, affidavits or written submissions may reveal the contents of the disputed records.

OIPC is prohibited by FOIPPA s 59(1) and (3) from disclosing information obtained in performing its duties, or information which a head of a public body is authorized or required to refuse to disclose pursuant to the provisions of FOIPPA . [ 17 ] In Alberta (Employment and Immigration) v Alberta Federation of Labour 2009 ABQB 344 at para 54 , 7 Alta LR (5th) 112, Verville J observed that for OIPC to disclose records that are the subject of an adjudication before it would not only violate its obligation under s 59(3), but would defeat the central purpose of the legislation.

The same concern would arise should disputed records be disclosed in the course of judicial review of an OIPC decision. [ 18 ] No party to this proceeding took a contrary position. I accept the submission of OIPC that the records that are the subject of the access to information request, and other documents that would reveal the content of those records, should be sealed.

I include in that category an affidavit filed by a prosecutor who had provided information to the Professionalism Committee. [ 19 ] I waived the requirement under Alberta Rules of Court , Rule 6.32 for notice to the media of the application to seal documents, pursuant to the discretion provided to the Court under Rule 6.28, on the ground that sealing of records that are the subject to an access to information request, and documents that would reveal the content of those records, is mandated by FOIPPA . [ 20 ] Other documents received in camera by the Adjudicator did not reveal the contents of the disputed records.

After consultation with affected parties, OIPC and the other parties to this application agreed that these documents would be added to the open Return. A Consent Order to this effect was entered on August 21, 2012. Standing of the Commissioner in judicial review proceedings [ 21 ] In accordance with accepted practice, the Commissioner made submissions in relation to the applicable standard of review and the “attack on his conduct” where the Applicant alleges breaches of procedural fairness.

Standard of Review [ 22 ] The recent decision of the SCC in Alberta Teachers' Association governs the applicable standard of review. That case involved

interpretation of FOIPPA s 69(

b) by the Commissioner. Rothstein J, writing for a majority of the Court, said “[w]hen considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness”: para 39. Exceptions, where the correctness standard applies, are constitutional questions, questions of law that are of central importance to the legal system as a whole, and true questions of jurisdiction . The Court concluded that “ unless the situation is exceptional, and we have not seen such a situation since Dunsmuir , the

interpretation by the tribunal of ‘ its own statute or statutes 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 ” : para 34. [ 23 ] Issues relating to the

interpretation and application of FOIPPA , s 21 are not general in such a way as to take them outside the expertise of OIPC, nor are they questions of central importance to the legal system as a whole. Although

interpretation of the scope of s 21(1)(

b) in relation to s 21(1)(

a) has precedential implications, and involves consideration of “intergovernmental relations”, this does not make it question of law of central importance to the legal system as a whole or a true question of jurisdiction. The interpretive issue is confined to the meaning of a provision of privacy legislation and is within the expertise of the Commissioner, and the appropriate standard of review is therefore reasonableness. Reasonableness is also clearly the applicable standard for the question of mixed fact and

law as to whether information was supplied in confidence. [ 24 ] As to the question whether the Adjudicator breached the requirements of procedural fairness, the proceedings must meet the level of fairness required by law: CUPE v Ontario (Minister of Labour) , 2003 SCC 29 at paras 100-103 , [2003] 1 SCR 539. Issue 1. Information Supplied in Confidence Evidence [ 25 ] EPS provided affidavit evidence that the information supplied to the Professionalism Committee was treated as confidential.

It was shared only with members of the Professionalism Committee and EPS management as required by this narrow group for the purpose of their mandate and work. [ 26 ] Ms. Armstrong, a member of the EPS Professionalism Committee, interviewed a number of Crown prosecutors to seek their opinions regarding issues relating to their relationship with EPS members.

She deposed that when she met with prosecutors, she advised them that the success of the Professionalism Committee’s project depended on an honest and frank discussion, that the consultative process was in confidence and that their identities would be protected and would not be included in any report. She further deposed that information obtained was treated as confidential. She indicated that the full Report had been distributed only to EPS management and EPC. [ 27 ] Mr.

Falconer, an experienced Crown prosecutor, did not participate in the Professionalism Committee’s work, but reviewed a portion of the Report entitled “Consultation with Crown Prosecutors.” He deposed that, based on his experience, prosecutors would not have been as candid in their discussions with Ms.

Armstrong unless they received assurances of confidentiality “i.e., that their individual identities would not be disclosed, and that the informational content of their remarks would be disclosed only to management-level personnel within EPS.” He believed that prosecutors would not have wanted their comments disseminated to the public or “even to rank- and-file members of EPS”. [ 28 ] An in camera affidavit was also provided by one of the participating prosecutors.

The Adjudicator quoted from the affidavit “where it would not reveal information in the Report” as follows: It was clearly understood in this meeting that these views would be kept in confidence, at the very least to the extent that our individual identities as prosecutors would not be revealed , and that our views were being offered in an effort to assist EPS management in assessing the “court-readiness” of their officers, in order to improve the quality of EPS service to the Crown and the Courts.

It was never intended that these views be shared even with rank-and-file members of EPS, or with the general public. [emphasis added by the Adjudicator] . . . For myself, I would not have disclosed the specific information related in the manner I did, or at all in some instances, had I been concerned that my identity would become known . . . I believe that all of the prosecutors who shared their views as I did would have a similar point of view. [ 29 ] Mr. Jackman, an employee of EPC, was a member of the Professionalism Committee. It was his responsibility to obtain information from EPC members and staff.

He provided them with a questionnaire. He advised them that “the survey was to be completed anonymously and that their responses would be kept confidential and would only be used by the Professionalism Committee to assist it in achieving its mandate.” He encouraged them to be as candid as possible. [ 30 ] An Affidavit was filed by Inspector T. Schinbein of VPD relating to the circumstances in which he provided information to the Professionalism Committee regarding professional ethics and training at the VPD:

In supplying this information, it was my intention and understanding that information that I provided relating to the specific issues at [VPD] would remain confidential. This information was supplied voluntarily, and specifically to the Professionalism Committee of [EPS]. I expected that this information would be treated confidentially by [EPS] and used only in conjunction with the Professionalism Committee of [EPS]. . . . At the time that I provided the information, in confidence, the information was not publicly available information and I have not at any time made this information publicly available. . . .

Confidentiality is expected and required because of the sensitive nature of the information discussed. . . . [S]pecific information ... regarding training issues ... is shared with the expectation that it will be used only to the extent necessary for the training purposes for which it was provided. [ 31 ] There was no evidence before the Adjudicator regarding the basis on which information was supplied by TPS to the Professionalism Committee (para 130).

Adjudicator ’s decision [ 32 ] Relying on BC Privacy Commissioner’s Order No. 01-36 (adopted in Alberta Privacy Commissioner’s Order 99-018), the Adjudicator stated that in order to establish that information was supplied to a public body in confidence, the factors to be considered include whether the information was: 1. communicated to the public body on the basis that it was confidential and that it was to be kept confidential; 2. treated consistently in a manner that indicates a concern for its protection from disclosure by the affected person prior to being communicated to the public body; 3. not otherwise disclosed or available from sources to which the public has access; 4. prepared for a purpose which would not entail disclosure. (para 79) [ 33 ] The Adjudicator also observed that the test requires an “an objectively reasonable expectation of confidentiality”, which can be based either on express communication or other objective criteria that ground the expectation (para 85). [ 34 ] The Adjudicator held as follows regarding information supplied by Crown prosecutors: [T]he evidence does not establish that the information provided by Crown prosecutors was provided in confidence nor does it establish that the Crown prosecutors imposed limits on the distribution of the information they provided.

I find that the only condition imposed was that of anonymity, which the authors of the Report took steps to maintain. (para 87) [ 35 ] Regarding EPC information, the Adjudicator was satisfied that survey participants were assured that their responses would be kept anonymous, and that the Report complies with this assurance as it does not associate responses with particular participants. She held that this was not the same thing as an assurance that the information they supplied would be held in confidence.

She concluded that EPC evidence did not establish that the information was provided on the basis that it was confidential. [ 36 ] The Adjudicator commented on the significance of the fact that the information was provided for a report: In addition, as the information was supplied for a report, which would suggest that the information would be reported to someone, and

with the understanding that it would be used by the Professionalism Committee to fulfill its mandate, it would seem likely that the information was supplied on the understanding that the Professionalism Committee would disclose it at its discretion to further its own purposes.

There is no evidence that the [EPC] imposed limits on the Professionalism Committee’s discretion to distribute the Report. (para 109) [ 37 ] The Adjudicator also noted that there was no submission that the survey responses in the Report contained sensitive information. [ 38 ] As to VPD, the Adjudicator held: The affiant states that he had an expectation that the information he supplied on behalf of VPD would be treated confidentially. However, ... [f]rom the affidavit, it appears that the affiant did not tell [EPS] that he was supplying information in confidence. ..

I have not been told what limits VPD put on the distribution of information, or how it protected the information it supplied prior to supplying it to [EPS]. (para 124) [ 39 ] The Adjudicator also noted that, on review of VPD information in the Report, she was not satisfied that it was “sensitive, such that it could only have been supplied in confidence.” Statements regarding the VPD training program and labour shortages did not appear to be sensitive.

A specific incident referred to in the Report had been discussed in national media, and the information in the Report did not appear to contain any details not publicly known. Application of standard of review [ 40 ] The application of the reasonableness standard involves an assessment of both the reasons and outcomes of a decision.

A reviewing court must look for “the existence of justification, transparency and intelligibility within the decision-making process” and “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at para 47.

An assessment in the context of the reasonableness analysis demands that “the reasons must be read together within the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes”: Newfoundland and Labrador Nurses ’ Union v Newfoundland & Labrador (Treasury Board) , 2011 SCC 62 at para 14 , [2011] 3 SCR 708. [ 41 ] None of the parties take issue with the legal test as stated by the Adjudicator.

However, EPS argued that the Adjudicator “purported to add an element” to the test when she commented on the lack of “sensitivity” of some information in the Report. [ 42 ] The Adjudicator’s comments regarding the lack of apparent sensitivity of information provided by EPC and VPD was in the context of her consideration of the fourth element of the legal test, whether the information was prepared for a purpose which would not entail disclosure. Her reasoning was that some information by its nature would support a finding that it could only have been supplied in confidence.

The information in question was not of that character. She was not adding an element to the test, merely applying the fourth element in the agreed test. She also did not make “sensitivity” a requirement of confidentiality, as argued by EPS, she considered all four indicia of confidentiality in coming to her conclusions. [ 43 ] The Adjudicator was aware of the evidence provided by the parties. It has not been demonstrated that she erred in her

summary of that evidence or that she misapprehended the evidence. The arguments by EPS, Alberta Justice and EPC are essentially that the Adjudicator did not give proper weight to the evidence. [ 44 ] The Adjudicator held that the evidence supported a subjective expectation of confidentiality on the part of the parties, while the law requires an objective determination in all of the circumstances that information was communicated on a confidential basis. She distinguished between assurances of anonymity and confidentiality.

She concluded that the contemplated use of the information, to provide the basis for a Professionalism Report where the information in an anonymous form might form a part of that Report and where the circulation of the Report was left to the discretion of the Professionalism Committee, was indicative that the information was not supplied in confidence.

[45] I am satisfied that the Adjudicator’s Decision is intelligible and “falls within a range of possible, acceptable outcomes whichare defensible in respect of the facts and law.” In the result, I hold that her conclusion that the information in question was not suppliedin confidence is a reasonable decision based on the law and the evidence before her. [46] The finding by the Adjudicator that information was not supplied in confidence by any of Alberta Justice, EPC, VPD or TPSmeans that none of the information in issue comes within the scope of s 21(1)(b). It is not necessary to review the alternative groundconsidered by the Adjudicator as to what entities come within the scope of s 21(1)(

a) and (b), and I decline to do so. Issue 2. Procedural Fairness [47] The Applicant submits that the Adjudicator breached the requirements of procedural fairness when she: (

a) considered evidence without providing the parties and affected parties with the opportunity to address the evidence; and (

b) failed to address the issue of the identity of affected parties and failed to provide an opportunity to make submissions to all partiesaffected by the matter. EPS’s position [48] EPS alleges a breach of procedural fairness as a result of the statement by the Adjudicator in her Decision that: . . . references to labour shortage issues are not necessarily sensitive. The specific incident referred to in the Report ... was discussed inthe national media, and the information does not appear to contain any details that are not publicly known.

I am therefore not prepared toinfer from the information that it is sensitive or that it could only have been supplied in confidence. (para 126, emphasis added) [49] EPS states that none of the parties in this case presented any information regarding the national media to the Adjudicator. The implication of the Adjudicator’s statement is that she relied on evidence that was unknown to the parties and regarding which theparties were not given the opportunity to make submissions.

EPS contends that it is a breach of the duty of procedural fairness to rule ona matter that was not brought to the attention of the parties: Lycka v Alberta (Information and Privacy Commissioner), 2009 ABQB 245at paras 43-45, 5 Alta LR (5th) 318, citing, Baker v Canada (Minister of Citizenship and Immigration), (SCC),[1999] 2 SCR 817, 174 DLR (4th) 193 [Baker]; Business Watch International Inc v Alberta (Information and PrivacyCommissioner), 2009 ABQB 10 at paras 105-106, 90 Admin LR (4th) 182. [50] EPS submits that it need not show actual prejudice to establish a denial of procedural fairness; it is sufficient to demonstratethat the breach may reasonably have prejudiced it: Khan v University of Ottawa (1997), (ON CA), 34 OR (3d) 535 atpara 34, 148 DLR (4th) 577.

The breach by the Adjudicator may reasonably have prejudiced it because she concluded that theinformation in question was available to the public contrary to the sworn evidence of VPD. The Adjudicator’s reliance on this “nationalmedia” evidence without specifying its nature makes her analysis incomplete, unreasonable and unfair. [51] Further, EPS says that in March 2009 it notified the Adjudicator that other police services were Affected Parties. Nonetheless, OIPC took no steps to notify or contact these potential Affected Parties, as required by the provisions of FOIPPA, s 67.

EPS draws an analogy with the requirement under FOIPPA, s 30, dealing with access to personal information and the notification rightsof parties, and argues that similarly an entity whose confidential information may be released following the Commissioner’s decision isowed notification rights: Edmonton Police Commission v Alberta (Information and Privacy Commissioner), 2011 ABQB 291 at para24. [52] EPS observes that the Adjudicator did not provide reasons for failing to contact or name TPS as an Affected party; and

notwithstanding, drew conclusions that were based on the lack of evidence regarding the information supplied in confidence by TPS. EPS argues that the inability of TPS to participate in the proceedings before the Adjudicator deprived EPS of the ability to rely on theevidence of a potential Affected Party; and this may reasonably have prejudiced EPS’s position.

OIPC’s position [53] The Commissioner submits with regard to the Adjudicator’s reference to the “national media”, that this comment was not thebasis of her decision on the issue, but merely “a small observation” and a way of saying that EPS and VPD had not satisfied her that theinformation was “sensitive, such that it could only have been supplied in confidence.” [54] On the issue of contacting Affected Parties, the Commissioner notes that EPS did not raise the issue of notification before theAdjudicator and as such, it is not surprising that the Adjudicator did not address the issue in her Decision. [55] The Commissioner submits that it is significant that EPS advised the Adjudicator that it had already asked both TPS and VPDto contact OIPC directly if they wished to participate in the Inquiry.

VPD contacted OIPC, and while not named as an “affected party”,VPD was permitted to submit evidence and argument in the Inquiry. [56] The Commissioner distinguishes Edmonton Police Commission v Alberta (Information and Privacy Commissioner) as an“affected party” under FOIPPA, s 67 is a broader category than a “third party” under FOIPPA s. 30.

Previous decisions demonstrate thatthe requirement to give notice to an affected party is treated as directory rather than mandatory and the failure to give notice does notinvalidate a hearing if there is no impact on the fairness of the hearing: OIPC Order 97-009: Alberta Environmental Protection, paras58, 60-61; OIPC Decision F2008-D-003: Edmonton Police Commission, cited with approval in Association of Academic Staff of theUniversity of Alberta v University of Alberta, 2012 ABQB 248 at para 35; OIPC Decision F2012-D-01: Workers’ Compensation Boardat paras 32-36.

Analysis [57] It is important to say at the outset that courts have held on a considerable number of occasions that a proceeding before anadministrative decision maker need not be absolutely perfect in order for it to comply with the duty of substantive or procedural fairness.The SCC in R v Harrer, (SCC), [1995] 3 SCR 562 at para 45, observed in a general sense that: A fair trial must not ... be conflated with the perfect trial; in the real world, perfection is seldom attained.

A fair trial is one whichsatisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused. [58] From the perspective of administrative law, in Canadian Union of Public Employees, Local 301 v Montreal (City), (SCC), [1997] 1 SCR 793 [CUPE], the SCC considered the issue of natural justice in the context of the recording ofadministrative hearings and held that absent a defect that raises a “serious possibility” of prejudice, the recording of the proceedingsbefore a tribunal need not be perfect in order to ensure the fairness of the administrative decision-making process: CUPE at para 81. [59] The duty of procedural fairness is flexible and variable, and depends on an appreciation of the context of the particular statuteand the rights affected in a given set of circumstances (i.e. “the specific context of each case”): Baker at paras 21-22. [60] Regarding the argument that the Adjudicator breached the requirements of procedural fairness by failing to contact or nameTPS as an Affected Party, it is in my view very significant that the Adjudicator was advised by EPS that it had requested both TPS andVPD to contact OIPC directly if they wished to participate in the Inquiry.

VPD contacted OIPC and was permitted to participate in theInquiry. TPS did not. I note that TPS has also not applied to be added as a party to the judicial review application. [61] I conclude, based on this evidence, that TPS was aware of the OIPC proceeding. TPS could have taken the reasonable step ofcontacting OIPC if it wished to participate. Had it done so, the Adjudicator would have accepted submissions from TPS, just as she didregarding VPD.

In these circumstances, I agree with the comment of MacKeigan CJNS in Tomko v Nova Scotia (Labour RelationsBoard) (1974), (NS CA), 9 NSR (2d) 277 at paras 76-78 (NSCA)(WL); affirmed (1975), (SCC),

[1977] 1 SCR 112, that: In such situations “the failure to give any formal opportunity to be heard is immaterial if the person affected was in fact aware of whatwas proposed or knew or ought to have known that he could have made representations had he wished.” (para 76, citing de Smith, Judicial Review of Administrative Action, 3rd ed, (London: Stevens & Sons Ltd, 1973) at 169.

See also, Hretchka v Attorney General of British Columbia, (SCC), [1972] SCR 119; David P Jones and Anne S deVillars, Principles of Administrative Law, 5th ed (Toronto, Ont: Carswell, 2009) at 265. [62] If lack of notice to TPS were a defect, I am not satisfied that it raises a “serious possibility” of prejudice to EPS.

EPS had itsown opportunity to present evidence and make submissions about whether or not the information was supplied by TPS to EPS inconfidence. [63] I turn to the EPS submission that the Adjudicator relied on information from the national media without giving parties theopportunity to respond. [64] In Maslej v Canada (Minister of Manpower & Immigration), (FCA), [1977] 1 FC 194 at 198, 13 NR 263(FCA) Urie J (speaking for a unanimous panel of the FCA) stated that: ... no tribunal can approach a problem with its collective mind blank and devoid of any of the knowledge of a general nature which hasbeen acquired in common with other members of the general public, through the respective life-times of its members, including perhapsmost importantly that acquired from time to time in carrying out their statutory duties. (emphasis added) [65] Information that appears in the “national media” is not necessarily, but may be, “knowledge of a general nature”. [66] The Adjudicator considered whether the information provided by VPD to the Professionalism Committee was sensitive inconsidering whether the information by its nature must have been supplied in confidence.

This was in response to a submission by EPSthat the nature of the information pointed to its confidentiality. In asking the Adjudicator to find that the information was by its natureconfidential, EPS was essentially asking her to rely on her general knowledge as to what kind of information fits within this category. Itwas in that context that the Adjudicator, having reviewed the information in question, noted that to her knowledge “the specific incidentreferred to in the Report . . .was discussed in the national media” and did not include details that were not “publicly known”.

I wouldaccept this as a statement by the Adjudicator of general knowledge. [67] I also note that there was no evidence, or even any submission, to the effect that the Adjudicator’s statement was in factincorrect. So if the reference to the national media were a defect in procedure, I am again not satisfied that it raises a “seriouspossibility” of prejudice to EPS. [68] The Applicant has failed to make out a breach of the requirements of procedural fairness.

Conclusion [69] The application for judicial review of Order F2008-027 issued on June 9, 2009 issued by the Office of the Information andPrivacy Commissioner is dismissed. [70] The parties may speak to me regarding costs if they are unable to agree.

Heard on the 3 rd day of May, 2012 and on the 26 th day of June, 2012. Dated at the City of Edmonton, Alberta this 27th day of September, 2012. J.M. Ross J.C.Q.B.A. Appearances: Anne L.G. Côté Field LLP for the Applicant, Edmonton Police Service Richard B. Drewry, Q.C. and Darin S. McKinley Emery Jamieson for the Respondent, Information and Privacy Commissioner Thomas M. Engel Engel Brubaker for the Respondent, Criminal Trial Lawyers' Association Sean McDonough Alberta Justice for the Respondent, Minister of Justice and Attorney General of Alberta Bryan Sarabin for the Respondent, Edmonton Police Commission Darrin Hurwitz

for the Respondent, Vancouver Police Department