Alberta (Information v. Privacy Commissioner), 2013 ABQB 106

Court of Queen ’ s Bench of Alberta Citation: Alberta Teachers ’ Association v Alberta (Information and Privacy Commissioner), 2013 ABQB 106 Date: 20130215 Docket: 0803 05729 Registry: Edmonton In the Matter of the Personal Information Protection Act, S.A. 2003, c.

P-6.5 And in the Matter of Order P2007-014 Issued by the Office of the Information and Privacy Commissioner on March 13, 2008 Between: Alberta (Information and Privacy Commissioner) Applicant (Respondent on Originating Application) - and - Alberta Teachers ’ Association Respondent (Applicant on Originating Application) Corrected judgment: A corrigendum was issued on March 13, 2013; 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 _______________________________________________________ I. Introduction [1] The Information and Privacy Commissioner (Commissioner), the respondent to a judicial review application, seeks to set asideamendments made to the Originating Application by the Alberta Teachers Association (ATA), the applicant for judicial review. II. Background [2] This matter has a lengthy history. [3] In 2005, the ATA published an

article in its newsletter which included the names of certain persons in conjunction with astatement that these persons were no longer required to adhere to the ATA’s code of professional conduct. In late 2005, a number ofthese named persons filed complaints with the Commissioner alleging that ATA had disclosed their personal information contrary to thePersonal Information Protection Act, SA 2003, c P-6.5 (PIPA). In September 2006, the complainants requested that the Commissionerconduct an inquiry.

The Commissioner appointed an adjudicator and notice of the inquiry was provided to the parties in May 2007. [4] The adjudicator’s decision, issued on March 13, 2008, found that the ATA had breached s. 7 of PIPA, the prohibition ofdisclosure without authorization or consent, and s. 19 of PIPA, which permits disclosure for reasonable purposes. The adjudicatorrejected the ATA’s argument that its disclosure was protected by s. 4(3) of PIPA, which deals with the disclosure of personal informationfor journalistic purposes.

She also dealt with another exemption to prohibitions on disclosure relating to “publicly available information”as defined in the Personal Information Protection Act Regulation, Alta Reg 366/2003 (PIPA Regulation). [5] An Originating Notice, commencing a judicial review application in this Court, was filed by the ATA on April 28, 2008.The Originating Notice was filed within the 45-day period for filing such an application as required by s. 54.1 of PIPA.

The OriginatingNotice contained eighteen paragraphs elucidating the grounds in support of the application (which the Commissioner refers to as eighteengrounds for review, although it is not apparent to me that each paragraph contains an identifiable ground).

Paragraph 18 is a basketclause that indicates the ATA may rely on other grounds as permitted by the Court. [6] In the Originating Notice, at paragraph 8 of the grounds for review, the ATA alleged that the Commissioner had interpreteds. 4(3) of PIPA, which excludes disclosures made for journalistic purposes from the provisions of PIPA, “in a manner inconsistent withthe fundamental value Canadians place on free expression”.

The ATA had argued, before the adjudicator, that s. 4(3) of PIPA should bebroadly interpreted so as to authorize its publication in light of the guarantee of free expression in the Canadian Charter of Rights andFreedoms. The adjudicator rejected this argument. [7] The judicial review was heard by Justice Marshall on October 9, 2008. Justice Marshall allowed the application on theground that the Commissioner’s inquiry was not held within the timelines provided in PIPA: Alberta Teachers’ Association v Alberta (Information & Privacy Commissioner) (2008), (AB KB), 21 Alta LR (5th) 24 (QB), (QB Decision).

This groundfor judicial review was not specifically set out in the Originating Notice. None of the other grounds for review were dealt with byJustice Marshall and it is agreed that the ATA was not given the opportunity to have the other grounds heard or considered.

[ 8 ] Justice Marshall ’ s decision was upheld by the Alberta Court of Appeal, with Justice Berger dissenting, on January 27, 2010: Alberta Teachers ’ Association v Alberta (Information & Privacy Commissioner) , 2010 ABCA 26 , 21 Alta LR (5 th ) 30 ( CA Decision ) . The CA Decision also dealt only with the timelines issue. [ 9 ] The Supreme Court of Canada overturned the Alberta Court of Appeal decision on December 14, 2011: Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association , 2011 SCC 61 , [2011] 3 SCR 654 ( SCC Decision ) . The SCC Decision dealt only with the timelines issue.

The ATA had requested before the Supreme Court, and counsel for the Commissioner recommended, that the matter be remitted to the chambers judge to consider the issues not previously dealt with or resolved in the judicial review.

The reasons of the Supreme Court referred to the Commissioner ’ s recommendation and its judgment provided that the adjudicator ’ s decision on the timelines issue be reinstated and that the matter be remitted to the chambers judge to consider the issues not previously dealt with or resolved in the judicial review. [ 10 ] While the timelines issue was being litigated to the Supreme Court of Canada in this case, issues regarding s. 4(3) , and other provisions of PIPA and freedom of expression as protected by the Charter , were being litigated in another case, United Food and Commercial Workers, Local 401 v Alberta (Information and Privacy Commissioner) , 2011 ABQB 415 , 53 Alta LR (5th) 235 , varied 2012 ABCA 130 , 57 Alta LR (5th) 249 ( UFCW ) .

In that case the adjudicator held that her ability to consider the Charter was limited by the Administrative Procedures and Jurisdiction Act , RSA 2000, c A-3, pursuant to which the Commissioner and adjudicators under PIPA are not included in the category of tribunals entitled to determine questions of constitutional law.

The constitutional issues in UFCW were accordingly dealt with in the first instance by this Court in the judicial review application, with the Attorney General opposing the application. [ 11 ] On that application, Justice Goss declared a portion of s. 4(3) of PIPA , and the definition of “ publicly available information ” in the PIPA Regulation , to be invalid. On appeal, the Court of Appeal varied the decision, holding that the adjudicator ’ s

interpretation of PIPA and the order she granted interfered with freedom of expression under the Charter . The Court of Appeal did not focus exclusively on the provisions declared invalid by Justice Goss, but found a number of “ aspects of over-breadth ” in PIPA ’ s impact on free expression, and concluded that the proper remedy was a declaration that the order was unconstitutional, rather than a remedy directed to the statute. The Supreme Court of Canada has granted leave to appeal from the Court of Appeal decision. III.

Issues Regarding Amendments [ 12 ] On August 13, 2012, the ATA filed an Amended Originating Application for Judicial Review, in which it seeks declarations that provisions of PIPA and the PIPA Regulation are unconstitutional or, in the alternative, that the adjudicator ’ s order is unconstitutional. [ 13 ] The Commissioner objects to these amendments on a number of grounds. A.

Remittance by the Supreme Court of Canada [ 14 ] First, the Commissioner argues that the amendments contravene the Supreme Court of Canada order, which remitted the matter to this court “ to consider the issues not previously dealt with and resolved in the judicial review ” , namely the issues identified in the 2008 Originating Notice. [ 15 ] If the Supreme Court of Canada remitted the matter to this Court to hear specified issues, this Court would be bound by that order.

However, I agree with the ATA that the Supreme Court decision did not do this - it did not in any way limit the issues to be dealt with by this Court, other than excluding the one issue that has already been litigated, the timelines issue.

[16] When a new trial is directed by the Alberta Court of Appeal, the new trial proceeds subject to the Alberta Rules of Court,Alta Reg 124/2010 (Rules of Court): Polansky Electronics Ltd v AGT Ltd, 2002 ABQB 172 at para 10, 306 AR 333. Similarly, whenthe Supreme Court of Canada directed that the ATA’s judicial review application was to proceed to deal with matters that have not yetbeen addressed, there is nothing in that direction which precludes the application of the Rules of Court, including the Court’s power topermit amendments.

This is made even clearer by the inclusion of a basket clause, a reference to other grounds permitted by this Court,within the grounds of review in the 2008 Originating Notice. This Court’s discretion to permit other grounds to be heard was notrestricted in any way by the Supreme Court of Canada order. B. Matters not raised before the adjudicator [17] A large portion of the Commissioner’s submissions relate to its argument that the added Charter issues should not form partof the judicial review application because they were not argued before the adjudicator.

The Commissioner relies on the SCC Decisionwhich discusses the discretion of a judge hearing a judicial review application to decline to hear matters not raised before the originaltribunal. [18] The Commissioner’s argument in this regard is misplaced. The discretion to define the proper scope of a judicial reviewapplication rests with the judge hearing the judicial review application, not with a different judge considering whether to allowamendments.

This argument does not relate to the timing or the validity of the amendments as such and this same argument would applyeven if the Charter grounds had been raised in the 2008 Originating Notice. [19] Further, the impact of the Charter was raised before the adjudicator. While it was raised in a limited way, that may accordwith the limited jurisdiction of the adjudicator to consider Charter issues.

In UFCW, due to the limited jurisdiction of the adjudicator inrelation to constitutional issues, the Charter issues were dealt with substantively in the first instance on the judicial review applicationbefore the Court of Queen’s Bench. The judge who ultimately hears the ATA’s judicial review may decide that would be appropriate inthis case as well. In any event, I will not address these arguments by the Commissioner any further, as they are not relevant on thisapplication and must await the judicial review itself. C.

Principles governing Court discretion to permit amendments [20] The Commissioner argues that the amendments were improperly made, as they were made unilaterally by the ATA, withoutseeking court leave in advance. The Commissioner argues that by analogy to Rules 3.62 and 3.65 of the Rules of Court, this case shouldbe treated like a case in which pleadings have closed, even though an Originating Application is not a pleading, so that prior Court permission for amendments is required.

According to Rule 3.65 of the Rules of Court, the Court has discretion topermit amendments before or after the close of pleadings. [21] I do not need to decide this issue because the test for validity of amendments is the same, whether the Court is consideringthe matter prior to the amendments being filed, or afterwards, on an application to set aside the amendments. This is a matter of form,which does not affect the validity of the amendments in any substantial way. It does not change the onus on this application, as suggestedby the Commissioner.

The onus to show prejudice is on the party objecting to the amendment; it does not depend on when theamendment is made or who brings the application. That onus is set out in Balm v 3512061 Canada Ltd, 2003 ABCA 98 at para 43, 14Alta LR (4th) 221: 43 The appellant’s counsel stated in oral argument that the appellants did not allege prejudice to themselves. Presumably he wasreferring to prejudice created by the amendment itself. And it is difficult to imagine that there could be prejudice to them from a fewmonths’ delay in making the amendment, if none was created by the mere existence of the amendment itself.

Had there been suchprejudice, the onus would have been on the appellant to raise it. The classic rule is that an amendment should be allowed, no matter howcareless or late, unless there is prejudice to the other side, and even that is no obstacle if it is repaired: Milfive Investments Ltd. v. Sefel(1998), 1998 ABCA 161 , 216 A.R. 196 (C.A.). [22] The reason for this approach to amendments is simple - amendments are permitted “for the purpose of determining the real

question in issue between the parties ” . That was express in Rule 132 of the former Rules of Court and, in my view, is implicit in the new Rule 3.65. This is consistent with a fundamental purpose of the Rules of Court as a whole, which is to “ identify the real issues in dispute ” : Rules of Court , Rule 1.2 (2)(a).

Rule 1.2 also contemplates that this will be done “ in a timely and cost effective way ” , and the Commissioner is clearly of the view that the amendments in this case are not timely and will lead to additional cost. [ 23 ] However, the real delay in this case was not caused by the ATA - it was due to no fault of the ATA that it has taken so long to reach the merits of this judicial review application. From the beginning, the ATA raised the issue of the impact of PIPA and the adjudicator ’ s order on what it alleges to be its constitutionally protected freedom of expression.

The ATA still desires that issue be addressed. The relationship between the Charter , PIPA , and the adjudicator ’ s decision is complex - that is shown by the different approaches in the UFCW case - and it is not yet settled, as UFCW remains under appeal.

The goal of the ATA ’ s amendments is to ensure that a “ real question in issue ” , namely the impact of the Charter ’ s guarantee of free expression, which it has raised from the beginning of this case, is determined in accordance with the law as it has developed during a period of delay before the merits of this case have ever been considered by this Court. [ 24 ] The parties to this application agree that there are four circumstances in which amendments will not be permitted: 1) where they would cause serious prejudice that cannot be repaired by a payment of costs; 2) where the amendment would be hopeless; 3) where it would add a new cause of action or a new party outside of the limitation period; and 4) where it is indicative of bad faith: Canada Deposit Insurance Corp v Canadian Commercial Bank , 2000 ABQB 440 at para 11 , 82 Alta LR (3d) 382 ; Manson Insulation Products Ltd v Crossroads C & I Distributors , 2011 ABQB 51 at para 45 . 1.

Prejudice [ 25 ] No irreparable prejudice arising from the amendments has been shown. The only prejudice is the cost of dealing with the Charter claims, and that is both a prejudice that can be remedied by costs and a prejudice that arises from the claims as such, not from the delay associated with adding the claims by way of amendment. “ Prejudice ” in the context of amendments is concerned with matters such as “ the availability of key witnesses, health and memory of key witnesses, destruction of relevant records and the like ” : Laasch v Turenne , 2012 ABQB 566 at para 68 .

Prejudice that would have existed even if the amendment had been included in the original pleading is not relevant. [ 26 ] The only irreparable prejudice resulting from delay that is alleged to have been incurred by the Commissioner is the assertion that, had the Commissioner been aware of the potential Charter amendments, the Commissioner would not have consented before the Supreme Court of Canada to the matter being returned to this Court, and would have sought and received an order reviving the adjudicator ’ s decision. This argument is mere speculation.

When asked at the Supreme Court hearing why he was taking this position, counsel for the Commissioner acknowledged that the ATA had never been given the opportunity to be heard on the merits of the judicial review. That is an agreed fact, and that fact, not the potential scope of the judicial review, is what made it fair for the Commissioner to concede, and the Supreme Court of Canada to order, that the ATA should have its opportunity to be heard.

Even if counsel had not conceded this point, the ATA may still have sought this relief and the circumstances would still have justified the Supreme Court order as given. [ 27 ] The Commissioner also suggests there may be prejudice to the individual complainants. The individual complainants indicated no interest in being involved in the original judicial review application made in 2008. The Commissioner suggests the complainants might have decided differently if they had been aware of the additional Charter issues.

That is completely speculative, and in any event, not a form of prejudice suffered by the Commissioner. I note that the Commissioner alleged this same form of prejudice before Marshall J. in relation to the timelines argument that was not included in the 2008 Originating Notice. Marshall J. concluded, as I have, that the argument was based on mere speculation: QB Decision at para 9 . 2. Hopeless [ 28 ] The Commissioner does not argue that the claims made in the amendments are hopeless and I cannot conclude that the claims are hopeless. 3. New Cause of Action Outside Limitation Period

[29] The Commissioner argues that the amendments add a cause of action outside of the limitation period contained in s. 54.1 ofPIPA, which provides: 54.1

(1) An application to the Court of Queen’s Bench for judicial review of a Commissioner’s order must be made not later than 45 daysfrom the day that the person making the application is given a copy of the order.

(2) If an application for judicial review is made pursuant to subsection (1), the Commissioner’s order is stayed until theapplication is dealt with by the Court. [30] The ATA relies on Pridgen v University of Calgary, 2010 ABQB 644, 33 Alta LR (5th) 152, aff’d on other grounds 2012ABCA 139, 350 DLR (4th) 1 (Pridgen), for two replies to this argument: first, that the amendments do not raise a new cause of actionbut merely different grounds for invalidity of the adjudicator’s decision, and second, that the limitation period in s. 54.1 applies to the“making of an application for judicial review”, but not to causes of action. [31] In Pridgen, two University of Calgary students challenged discipline decisions of the University placing them on probation asa result of negative comments they posted on a Facebook site with respect to one of their professors.

The Originating Noticecommencing their application was filed within six months of the University decision, as required by then Rule 753.11 of the formerRules of Court. After the expiry of the six-month period, the applicants sought to introduce arguments based on the Charter which werenot referred to in the Originating Notice. [32] Strekaf J. held, at paras 24-26: 24 The policy reason behind the requirement that judicial review applications be brought within six months, to ensure that personsaffected know whether an administrative decision is being challenged, has no application in this case.. .

There is no good reason whyRule 753.11 should be interpreted as limiting the Court’s ability to hear arguments that go beyond the grounds listed in the OriginatingNotice by which the application for judicial review was commenced. The limitation analogy advanced by the Respondent is notconvincing as the Charter and division of legislative powers arguments do not constitute new causes of action, but rather simplyadditional reasons why the Applicants argue the Review Committee’s decision should be set aside. 25 . . .

The Respondent has not alleged that it has suffered any prejudice as a result of the Applicants’ failure to advance thesearguments in their Originating Notice or their failure to seek to formally amend their Originating Notice to incorporate these additionalgrounds. 26 The Applicants are not precluded from advancing their constitutional arguments on this application.

While I do not consider itnecessary for the Applicants to amend their Originating Notice to advance these arguments, I would grant them leave to do so to theextent required. [33] Pridgen may be contrasted with Athabasca Environmental Association (Friends of) v Alberta (Public Health Advisory andAppeal Board) (1994), (AB KB), 153 AR 225 (QB), 18 Alta LR (3d) 92 (Friends of the Athabasca), in which theapplicants sought judicial review to quash a decision of the Board refusing them standing in a hearing relating to approval of a wastemanagement facility.

After the six-month period for commencing a judicial review application had expired, the applicants amended theirOriginating Notice by asking for a declaration that a provision of the governing legislation limiting standing to persons directly affectedby a decision of the Board violated their freedom of expression under the Charter. Veit J. denied leave to make the amendments, on thegrounds that the Charter issue had not been raised before the Board, that the amendments would require an adjournment, and that theresulting delay in deciding a public health issue would not be in the public interest.

She also agreed with the argument that theamendments set up a new cause of action which “ought not to be made without leave of the Court”. [34] In this case, the amendments made by the ATA occur in the Originating Application in two contexts. First, the portion settingout relief sought by the ATA is amended to include “declarations of constitutional invalidity. . remedies pursuant to s. 24(1) of theCharter. . .[and] declarations in relation to the Alberta Bill of Rights”.

These are particularized as including declarations that variousprovisions of PIPA are of “no force and effect” at all, or in certain circumstances, or declarations that provisions of PIPA should be

construed and applied so as not to violate freedom of expression as protected by the Charter and the Alberta Bill of Rights . In addition, the portion listing grounds for the application is extended from eighteen paragraphs to thirty-three paragraphs, with the additions setting out ways in which the Commissioner is alleged to have failed to interpret, or to construe and apply, PIPA in accordance with the Charter or the Bill of Rights . These paragraphs broaden the reference to freedom of expression beyond its impact on the

interpretation of s. 4(3) of PIPA as found in paragraph 8 of the 2008 Originating Notice. At least so far as the references to the Charter are concerned, the amendments are clearly intended to reflect the UFCW decisions on the interaction between various provisions of PIPA and the guarantee of free expression. [ 35 ] In Pridgen , the applicants for judicial review relied on the Charter as a ground to set aside the challenged decision; they did not seek to have statutory provisions declared invalid.

I agree that it amounts to the addition of a new cause of action where an application for judicial review seeks not only to set aside a challenged decision, but also claims additional relief in the form of declarations of invalidity of statutory provisions. Therefore, the ATA ’ s amendments amount to the addition of a new cause of action. [ 36 ] However, the limitation period in s. 54.1 of PIPA does not apply to claims or causes of action. The limitation period applies to the bringing of an “ application to the Court of Queen ’ s Bench for judicial review of a Commissioner ’ s order ” .

The purpose of that limitation period is undoubtedly, like the Rules of Court limitation period considered in Pridgen , “ to ensure that persons affected know whether an administrative decision is being challenged ” , and I agree with Strekaf J. that there is not reason why it “ should be interpreted as limiting the Court ’ s ability to hear arguments that go beyond the grounds listed in the Originating Notice by which the application for judicial review was commenced. ” There certainly may be other reasons why the Court would deny leave to add a late Charter challenge to an application for judicial review, as considered by Veit J. in Friends of the Athabasca , but these depend on circumstances other that the mere addition of a Charter challenge.

Veit J. had concerns relating to the impact of delay and whether the Charter issue was raised before the tribunal. These concerns are dealt with in other portions of this decision. [ 37 ] I conclude that the limitation period in s. 54.1 of PIPA has been met and does not preclude the addition of grounds or new claims for relief in an Amended Originating Application. Further, no other applicable limitation period has been referred, as the Limitations Act , RSA c L-12, does not apply to judicial review or declarations: Limitations Act , s 1(i). 4. Bad Faith [ 38 ] The amendments are not indicative of bad faith.

The delay in making the amendments is not the fault of the ATA. The Commissioner complains of a delay between the Supreme Court of Canada decision in December 2011 and the making of the amendments in August 2012. Counsel for the ATA explains that this delay is due to her suggestion that the application should await and be guided, or potentially determined, by the Supreme Court of Canada decision in the UFCW case - in other words, she was seeking to avoid the cost of litigating a similar issue while the law is unsettled.

This is not in any way bad faith. [ 39 ] The Commissioner ’ s argument that this is some form of re-litigation or abuse of process is also ill-founded. There is no abuse of process. The merits of this application, including Charter arguments, have never been litigated. [ 40 ] The Commissioner also argued that it was an indication of bad faith that the ATA did not indicate before the Supreme Court of Canada its intention to make substantial amendments to the Originating Application. I find no substance to this argument.

The Supreme Court of Canada hearing dealt exclusively with the timelines decision; there was no discussion regarding other grounds for judicial review. The ATA did not know whether the appeal would be allowed. It is unrealistic to expect counsel to have raised with the Supreme Court potential amendments to the Originating Application regarding issues not before the Court. IV. Conclusion [ 41 ] I conclude that the Commissioner has not met its onus of establishing a circumstance to bar the ATA amendments. Therefore, the amendments are permitted. Heard on the 25 th day of January, 2013.

Dated at the City of Edmonton, Alberta this 15 th day of February, 2013. J.M. Ross J.C.Q.B.A. Appearances: Glenn Solomon, Q.C. Jensen Shawa Solomon Duguid Hawkes LLP for Alberta (Information and Privacy Commissioner) Anne L. G. C ô t é Field LLP for Alberta Teachers’ Association _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice J.M. Ross _______________________________________________________ Page 1 has been changed to read: Alberta (Information and Privacy Commissioner) Applicant (Respondent on Originating Application) - and - Alberta Teachers’ Association Respondent (Applicant on Originating Application).

Page 11 has been changed to read: Glenn Solomon, Q.C. Jensen Shawa Solomon Duguid Hawkes LLP for Alberta (Information and Privacy Commissioner) Anne L. G. C ô t é Field LLP for Alberta Teachers’ Association