The Alberta Teachers ’ Association Applicant - v. -, 2013 ABQB 283

Court of Queen ’ s Bench of Alberta Citation: Alberta Teachers ’ Association v.

Buffalo Trail Public Schools Regional Division No. 28, 2013 ABQB 283 Date: 20130510 Docket: 1101 13977 Registry: Calgary Between: The Alberta Teachers ’ Association Applicant - and - Buffalo Trail Public Schools Regional Division No. 28 and Information and Privacy Commissioner Respondents Corrected judgment: A corrigendum was issued on November 22, 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 E.A.

Hughes _______________________________________________________

Introduction [ 1 ] The Alberta Teachers’ Association applies for judicial review of Order F2010-037 issued by the Office of the Information and Privacy Commissioner dated August 30, 2011. Facts [ 2 ] In early 2007, 12 school boards in Alberta, including the Respondent Buffalo Trail Public Schools Regional Division No. 28 (Buffalo Trail), became part of an unincorporated body known as the School Boards Employer Bargaining Authority (SBEBA). SBEBA was authorized as agent of its member boards to enter into the collective bargaining process with the Applicant, The Alberta Teachers’ Association (ATA).

All of the school boards fall within the definition of a “board” under the School Act , RSA 2000, c.S-3, and “employer” as defined by the Labour Relations Code , RSA 2000, c. L-1 and are “public bodies” as designed by the Freedom of Information and Protection of Privacy Act , RSA 2000, c. F-25 ( FOIPP Act ). In addition, the SBEBA falls within the definition of an “employer’s organization” as defined by the Labour Relations Code , but does not fall within the definition of a “public body”. [ 3 ] Later in 2007, both the ATA and the SBEBA filed complaints before the Alberta Labour Relations Board.

The ATA alleged the member boards of the SBEBA failed to bargain in good faith with the ATA; the SBEBA alleged the ATA failed to bargain in good faith with it and interfered with the formation of the SBEBA. [ 4 ] The Alberta Labour Relations Board held at paras.90 and 91: For reasons not entirely clear to us, the ATA and the SBEBA got off to a rocky start and quickly found themselves at an impasse due in the main to their difference over whether multiunit bargaining could be obliged or was only consensual.

With that issue now out of the way we would hope they will quickly get on with collective bargaining on a single unit basis, although it would still make more sense to us if they could mutually agree to do soon [sic] a multiunit basis. Although we have found that the ATA breached its duty to bargain in good faith with the SBEBA, contrary to

section 60, and also interfered with the formation of the SBEBA, contrary to

section 151(c), we do not propose to award any other relief apart from our declarations that those breaches occurred. We are not convinced any useful labour relations purpose would be served at this time by granting any other remedies. [ 5 ] It appears collective agreements were negotiated between the SBEBA and the ATA in January 2008. [ 6 ] On March 27, 2008, the ATA sent a letter to the SBEBA requesting the SBEBA’s constitution and related by-laws.

The ATA’s rationale for this request was set out as follows: In order to ensure that the Association is able to act fully on the new collective agreements and represent its teachers, it is necessary for Teacher Welfare staff to gain a full understanding of the operation of the SBEBA with its member school boards. The SBEBA constitution and any related bylaws will greatly assist the association in gaining this understanding – first in following the correct procedures related to the SBEBA and second so the Association may avoid interfering with or being seen to interfere with the SBEBA.

Therefore, I request the following documents: (1) the SBEBA constitution and (2) any related bylaws made by SBEBA. The letter was cc’ed to Teacher Welfare Staff Officers, Local Presidents of SBEBA Bargaining Units and District Representatives of SBEBA Bargaining Units. The letter also stated that a similar request had been made of all of the SBEBA school boards. [ 7 ] Neither the SBEBA nor any of the member boards of the SBEBA replied to this request.

[ 8 ] On May 15, 2008, the ATA made a request to the FOIPP Coordinator of each of the member boards and the SBEBA pursuant to the FOIPP Act for documents between January 1, 2006 and February 15, 2008 respecting the following: 1. The governing or founding documents (i.e. constitution, operational guidelines, frame work or memorandum of agreement) of the SBEBA; and 2.

All transactional records between the SBEBA and the school districts including but not limited to financial transactions and decisions, correspondence, board minutes, motions and bylaws. [ 9 ] The SBEBA and member boards, including Buffalo Trail, advised the ATA in identically worded letters it was processing the request and sought a thirty day extension “or other such time as may be necessary” because the requested records, if disclosed, may affect the interest of third parties. [ 10 ] Buffalo Trail’s letter was dated June 19, 2008 but was sent June 20, 2008. [ 11 ] On July 11, 2008 Buffalo Trail advised the ATA by letter that it “... declined to disclose the requested records on the following basis: - disclosure of these records would reveal commercial, financial and labour relations information (s.16(1)(a)(ii) FOIPP) in that these records contain information about how SBEBA is structured and how it organizes its work, membership obligations, fees, funds, collective bargaining parameters, strategies and updates regarding collective bargaining and Labour Relations Board matters; - these records were supplied explicitly and/or implicitly in confidence to our school board (s.16(1)(

b) FOIPP); - the disclosure of these records could reasonably be expected to: • interfere significantly with the negotiating position of the SBEBA (s.16(1)(c)(

I) FOIPP); and • result in undue financial loss to the SBEBA (s. 16(1)(c)(iii) FOIPP) given the environment in which the SBEBA has negotiated collective agreements on behalf of its members and in which SBEBA must administer those collective agreements, and given the negative critiques by the ATA and members of the ATA of the SBEBA that have been reported by various media outlets which could impact membership in the SBEBA and the resulting collective agreements negotiated on behalf of its members; • the disclosure of these records could reasonably be expected to reveal information supplied to, or the report of labour relations officers and negotiating committees appointed to resolve or inquire into a labour relations dispute (s.16(1)(c)(iv) FOIPP) given that these documents contain information regarding collective bargaining negotiations and the Labour Relations Board complaints filed by the Alberta Teachers’ Association; • some of these records are subject to solicitor-client privilege (ss.27(1)(

a) FOIPP).” [5] Buffalo Trail’s July 11 reply letter to the ATA was identically worded to the reply letters of the SBEBA and the other member boards. [6] As a result of these responses, the ATA sought a review of the decisions pursuant to s. 65(1) of the FOIPP Act . The Information and Privacy Commissioner appointed an officer to investigate and attempt to settle the matter.

[7] By letter dated March 30, 2009, Buffalo Trail advised the ATA it “... revisited the responses to your request and has enclosed 243 pages of records in reply ...” but “... is denying access to 253 pages claiming exception under the FOIPP Act ...”. However, Buffalo Trail also stated: It is the School Board’s position that it has valid arguments under the Act to refuse disclosure of these records on the basis of the sections referenced above.

However, in the spirit of the Act that public bodies be open and accountable and in the light of the relationship between the School Board and Alberta Teachers’ Association and the FOIP Portfolio Officer’s review of the request, the School Board is willing to disclose an additional 73 pages of records in the hope that this will brings [sic] your Request for Review to a conclusion and does not proceed to an inquiry before the Commissioner.

The additional records that the School Board is willing to disclose include the following: - The SBEBA Constitution and Bylaws; - Memorandum to various school board trustees regarding Employee Bargaining Association, dated February 27, 2007; - Agendas of the SBEBA meetings and conference calls (March 1, 2007; March 20, 2007; May 10, 2007; June 11, 2007; September 15, 2007; November 16, 2007; January 27, 2008); - Attendance and contact lists of the SBEBA board of directors and representatives; - General correspondence regarding the FTE of each member board; and - Other documents relating to the SBEBA of a general nature (e.g. draft resolutions for school board members, grievances regarding the SBEBA and ATA agreement, etc.).

Please advise us in writing of your agreement to bringing this matter to a conclusion and the School Board ’s additional disclosure of the records stated above. Once we have received this written confirmation, we will forward this additional package of records forthwith. This letter was not marked “without prejudice”. [8] The ATA rejected the proposal of Buffalo Trail and on April 22, 2009, the ATA requested this matter proceed to an inquiry pursuant to s. 69(1) of the FOIPP Act .

Subsequently, a decision was made to proceed with a representative case with the Respondent Buffalo Trail. [9] On August 30, 2011 the Adjudicator issued his decision - Order F2010-037. In this decision, the Adjudicator found at paras 114-121: I find that the Public Body met its duty to assist the Applicant, as required by section 10(1) of the Act. I find that the Public Body properly extended the time limit for responding to the Applicant’s access request, as authorized by

section 14 of the Act.

I find that section 16(1) of the Act does not apply to the records at issue, as the information that would be revealed by them relates to non-arm’s length transactions between the Public Body, the SBEBA and the Affected School Boards within the terms of section 16(3) (c), meaning that section 16(1) cannot apply. I find that the Public Body did not properly apply section 23(1) of the Act to the records at issue, as they do not reveal the substance of deliberations of a meeting of the Public Body’s elected officials, its governing body, or a committee of its governing body within the terms of section 23(1)(b).

I find that the Public Body properly applied section 25(1) of the Act to the records at issue, as they consist of information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of the Public Body under section 25(1)(c)(iii).

I find that the Public Body also properly applied section 24(1) of the Act to many of the records at issue, as they could reasonably be expected to reveal advice, proposals, recommendations, analyses or policy options developed by or for the Public Body under section 24(1)(a), reveal consultations or deliberations involving officers or employees of the Public Body under section 24(1)(b), and/or reveal positions, plans, procedures, criteria or instructions developed for the purpose of contractual or other negotiations by or on behalf of the Public Body, or considerations that relate to those negotiations, under section 24(1)(c).

Where the Public Body did not properly apply section 24(1), it properly applied section 25(1) in any event. I find it unnecessary to decide whether the Public Body properly applied section 27(1) of the Act to the records at issue, or whether section 17(1) applies to the records at issue. Under section 72(2)(

b) of the Act, I confirm the decision of the Public Body to refuse the Applicant access to the records at issue. [10] The ATA sought judicial review of the Adjudicator’s decision. Issues [11] The ATA set out the issues in its written submissions as follows:

Section 10 errors 1.1 the Adjudicator erred in deciding that the March 27, 2008 letter of ATA was not a request to which the Act applied. 1.2 the Adjudicator erred in deciding that the Public Body met its obligation to assist the ATA despite the initial response letter having arrived outside of the time for reply under

section 11. 1.3 the Commissioner [Adjudicator] erred in concluding that the Public Body made reasonable efforts to assist the ATA.

Section 14 errors 2.1 the Adjudicator erred in declining to decide whether the Public Body was allowed to extend time outside of the time for reply under

section 11.

2.2 the Adjudicator erred in deciding that the Public Body properly extended time for replying.

Section 25 errors 3.1 the Adjudicator made an unreasonable misapplication of the harm test for withholding information to the constitution and bylaws of the SBEBA. 3.2 The Adjudicator made an unreasonable misapplication of the harm test for withholding information by finding that the Respondent met its burden of proof.

Section 24 errors 4.1 the Adjudicator erred in deciding that information relating to whether SBEBA should be formed, and information relating to negotiating positions of SBEBA and the Public Body, could be withheld. Analysis I. Standard of Review [ 12 ] There are two standards of review in Canada – correctness and reasonableness: New Brunswick (Board of Management) v. Dunsmuir 2008 SCC 9 , 1 SCR 190 at para. 34 . The ATA [1] and Buffalo Trail submit the correct standard of review is reasonableness. I agree. See Dunsmuir at paras. 51 - 64 and Edmonton Police Commission v.

Alberta Information and Privacy Commissioner, 2011 ABQB 291 , 516 AR 143 at para. 9 . [ 13 ] As observed by Rothstein J. in Alberta (Information and Privacy Commissioner) v. Alberta Teachers ’ Association 2011 SCC 61 , 3 SCR 654 at para. 30 : ... there is authority that “[d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity.” ... This principle applies unless the

interpretation of the home statute falls into one of the categories of questions to which the correctness standard continues to apply, i.e. “constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside the adjudicator’s expertise” ... [ 14 ] In Dunsmuir , the court defined the reasonableness standard at para. 47: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.

Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. See also in Halifax (Regional Municipality) v. Canada (Public Works and Government Services) 2012 SCC 29 . 2 SCR 108 at para. 49.

[15] The court in Dunsmuir went on to warn reviewing courts that a single reasonableness standard continues to require deference.Deference in this context was defined at paras. 48 and 49 as: Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient tothe determination of decision makers, or that courts show blind reverence to their

interpretations, or that they may be content to pay lipservice to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for thedecision-making process of adjudicative bodies with regard to both the facts and the law. ... Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations ofdecision makers.

As Mullan explains, a policy of deference “recognizes the realty that, in many instances, those working day to day inthe implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or fieldsensitivity to the imperatives and nuances of the legislative regime” ... [16] Factors that will render a decision unreasonable include: 1. If a decision maker’s reasoning was deeply flawed in that it “... relied on and led to a construction of the statute that fell outsideof the range of admissible statutory

interpretations.” Dunsmuir at para. 72. 2. If the decision has no evidentiary basis to support it: Toronto (City) Board of Education v. Ontario Secondary School Teachers’Federation District, (SCC), [1997] 1 SCR 487 at para. 44. 3. If a decision-maker makes a decision that is inconsistent with how he was directed to decide and contrary to the evidence beforehim: Halifax (Regional Municipality) v. Canada (Public Works and Government Services) 2012 SCC 29, 2 SCR 108.

The Issues 1.1 the Adjudicator erred in deciding that the March 27, 2008 letter of ATA was not a request to which the Act applied [17] The ATA submits the Adjudicator’s finding that its March 27, 2008 letter to the SBEBA and Buffalo Trail was not a requestpursuant to s. 7 and 10 of the FOIPP Act is unreasonable. [18] The two relevant sections provide: 7

(1) To obtain access to a record, a person must make a request to the public body that the person believes has custody or control of therecord.

(2) A request must be in writing and must provide enough detail to enable the public body to identify the record.

(3) In a request, the applicant may ask (

a) for a copy of the record, or (

b) to examine the record.

10(1) The head of a public body must make every reasonable effort to assist applicants and to respond to each applicant openly, accurately and completely.

(2) The head of a public body must create a record for an applicant if (

a) the record can be created from a record that is in electronic form and in the custody or under the control of the public body, using its normal computer hardware and software and technical expertise, and (

b) creating the record would not unreasonably interfere with the operations of the public body. [ 19 ] A

summary of the letter in question is set out above at para. 6. [ 20 ] The evidence before the Adjudicator was the affidavit of Shannon Melin, Director of Human Resources of Buffalo Trail and the corporate secretary and FOIPP head of Buffalo Trail, and the affidavit of Sandra Marcellus, the executive staff officer for Teacher Welfare with the ATA. Both affidavits exhibited the identical letter of March 27, 2008. [ 21 ] The letter was addressed solely to Mr. Brent Romanchuk, president of the SBEBA.

It was cc’ed to Teacher Welfare Staff Officers, Local Presidents of SBEBA, Bargaining Units and District Representatives of SBEBA Bargaining Units. The letter stated: “I have made a similar request of all the SBEBA school boards.” The ATA did not tender any evidence of the letters it alleged it sent to the SBEBA member school boards. [ 22 ] The Adjudicator found at paras. 22 and 23 of his decision: I note that the Applicant’s letter of May 15, 2008 to the Public Body refers to a “letter of March 27, 2008 to the superintendent of Buffalo Trail Public Schools Regional Division No. 28".

However, the March 27, 2008 letter before me in this inquiry is addressed to the SBEBA, not the Public Body. I therefore find that the letter did not constitute a request “to the public body” within the terms of section 7(1). Accordingly, the Public Body’s duty to assist the Applicant under section 10(1) was not triggered at that time.

The Applicant was specifically challenged by the Public Body to produce a copy of a March 27, 208 letter to the Public Body, yet the Applicant merely repeated the assertion of its Executive Staff Officer, which was that, on March 27, 2008, the Applicant “sent correspondence to each of the School Boards and to the SBEBA”. This is not sufficient to establish that there was, in fact, a letter of March 27, 2008 addressed to the Public Body, given the competing assertion of the Public Body.

The March 27, 2008 letter indicates that it was copied to Teacher Welfare Staff Officers, Local Presidents of SBEBA Bargaining Units and District Representatives of SBEBA Bargaining Units. Even if the letter was also copied to the Public Body, I would interpret that act as being for the purpose of providing information, not for the purpose of also making an access request to the Public Body. [ 23 ] When a decision maker is called upon to make a finding of fact, this usually means there is a fact in issue and invariably, more than one particular result is available to the decision maker on the evidence.

It is trite law that facts may be proven directly or indirectly, and that a decision maker may infer a fact in issue exists or not from the evidence. [ 24 ] In this case, the Adjudicator’s reasoning was transparent and intelligible, and his findings were based upon the evidentiary record before him. I find his decision was reasonable and there is no merit to the Applicant’s first argument. 1.2 the Adjudicator erred in deciding that the Public Body met its obligation to assist the ATA despite the initial response letter having arrived outside of the time for reply under

section 11.

[ 25 ] The balance of the Applicant’s submissions are premised upon its first FOIPP request, being its letter dated May 15, 2008. [ 26 ] S. 11(1)(

a) of the FOIPP Act provides: 11(1) The head of a public body must make every reasonable effort to respond to a request not later than 30 days after receiving it unless (

a) that time limit is extended under

section 14, or (

b) the request has been transferred under

section 15 to another public body.

(2) The failure of the head to respond to a request within the 30-day period or any extended period is to be treated as a decision to refuse access to the record. [ 27 ] The relevant portion of s. 14(1) states: 14(1) The head of a public body may extend the time for responding to a request for up to 30 days or, with the Commissioner’s permission, for a longer period if (

a) the applicant does not give enough detail to enable the public body to identify a requested record, (

b) a large number of records are requested or must be searched and responding within the period set out in

section 11 would unreasonably interfere with the operations of the public body, (

c) more time is needed to consult with a third party or another public body before deciding whether to grant access to a record, or (

d) a third party asks for a review under section 65(2) or 77(3). [ 28 ] By letter dated May 15, 2008 the ATA made a FOIPP request to Buffalo Trail for the founding documents of the SBEBA and all records between the SBEBA and its member boards. [ 29 ] Buffalo Trail received the letter on May 20, 2008. The Adjudicator held at para. 29 that the “... 30-day time limit set out in section 11(1) begins to run from the date that an access request is received. In this case, the Public Body received the Applicant’s May 15, 2008 access request on May 20, 2008, as indicated by a date stamp on the access request.

The 30-day period therefore expired on June 19, 2008.” [ 30 ] The evidence of Buffalo Trail was that it faxed its letter dated June 19, 2008 on June 20, 2008; the letter sought a 30 day extension and included six pages in response to the FOIPP request. Buffalo Trail’s evidence to explain the one day delay is found at para. 14 of Ms.

Melin’s affidavit: This delay of one day past the thirty days was not intentional, but rather a result of the fact that the request was to be processed near the end of the school year, which is an exceptionally busy time of year for administration of the Public Body, as well as inadvertent delay in receiving instructions/confirmation from the Public Body’s superintendent with respect to proceeding with an extension of time pursuant

to

section 14 of the FOIP Act . [ 31 ] This evidence was accepted by the Adjudicator who held at para. 32: First, I find that the Public Body was making reasonable efforts to respond to the Applicant’s access request and accept the Public Body’s explanation for sending the June 19, 2008 letter on the 31 st day following receipt of the request, rather than 30 th day or earlier.

Second, I decline to address whether an extension of the 30-day time limit must be made before expiry of the initial 30 days set out in section 11(1), given that the delay in this case was only by one day and the parties only very briefly addressed the issue in their submissions.

The point here is that the Applicant’s concern about the time taken by the Public Body to respond, or extend its response, to the May 15, 2008 access request does not lead me to conclude that the Public Body failed in its duty to assist the Applicant under section 10(1). [ 32 ] The Applicant submits this decision was unreasonable and relies upon a decision of the Office of the Information and Privacy Commissioner in 2007: Order F2007-012.

The ATA interprets this decision as standing for the proposition that the failure to meet the s. 11(1) deadline “... is not a mere technical matter, but has the effect of undermining the vital public interest that access to information legislation promotes.” In addition, the ATA submits Order F2007-012 also states s. 14 is prospective and not retrospective in application. [ 33 ] In Order F2007-012, the public body received a FOIPP request on January 12, 2006. It acknowledged receipt of the request on February 7, 2006.

By letter dated March 1, 2006 the Public Body extended its time to respond by 30 days pursuant to s. 14(1) of the FOIPP Act .

The issues before the Adjudicator included whether the Public Body complied with the time limit for responding pursuant to s. 11 and whether it had properly extended the time for responding under s. 14. [ 34 ] The Adjudicator in F2007-012 held that “If a Public Body can demonstrate that it made every reasonable effort to respond to a request within the time limit, but failed due to circumstances beyond its control, the public body would not be in breach of s. 11.” In her analysis of s. 14, the Adjudicator held at para. 34 that s. 14 is “... prospective in application, rather than retroactive. This means that

section 14 operates to extend the time limit in the future, but cannot be invoked to allow a public body to meet a statutory deadline it has already missed.” [ 35 ] My

interpretation of this decision differs from that of the ATA in that the ATA has failed to acknowledge the decision allows an adjudicator to not find a breach of s. 11 if a public body made reasonable efforts to respond. By implication, if there is no s. 11 breach, the s. 14 extension may be made after the 30 days. [ 36 ] Further, in the Order F2007-012 decision, the Adjudicator found the public body did not provide evidence that it took reasonable steps to meet the deadline, but rather argued its breach was “technical”.

I find the Adjudicator’s decision respecting s. 14 was informed by these factors. [ 37 ] In the case before me, the Adjudicator found, based on the evidence before him, that Buffalo Trail had made reasonable efforts to respond pursuant to s. 11. [ 38 ] I acknowledge the Adjudicator declined to address whether an extension of the 30 day time limit must be made before the expiry of the initial 30 days. However, from the reasons it appears the Adjudicator was not overly concerned with a one day delay. This is hardly surprising. See, for example, Alberta (Information and Privacy Commissioner) v.

Alberta Teachers ’ Association , 2011 SCC 61 , 3 SCR 654. [ 39 ] In addition, I must give “respectful attention to the reasons which could be offered in support of a decision.” There are at least two other reasons which could have been offered in this case. First, as set out above, the Adjudicator, having found no s. 11 breach, need not have addressed s. 14. Second, S. 11(2) of the FOIPP Act deems a failure to respond within 30 days or to seek an extension under s. 14 to be a decision to refuse access to a record.

The Commissioner advised of its procedure if it receives a deemed refusal: When the OIPC gets a deemed refusal, they open a review file and investigate/mediate. They then require the public body to respond to the access request under s. 11, which it can do as part of the mediation/investigation process. Then they close the file. If the public body

does not respond to the access request, the Commissioner can conduct an inquiry and issue an Order under section 72(3)(a), requiring the public body to comply with its duty to respond. The issue here is moot because the public body has responded, albeit a day late. Nothing came come of this other than an Order to respond, which would be pointless given that there has been a response.

The issue, therefore, is moot. [ 40 ] In conclusion, I do not find the decision of the Adjudicator on this issue to be unreasonable. 1.3 the Commissioner erred in concluding that the Public Body made reasonable efforts to assist the ATA. [ 41 ] The ATA’s written submissions at paras. 45 - 50 of its brief are premised upon the Adjudicator declining to deal with the extension of time. In light of my findings above, it is not necessary for me to deal with this issue.

However, if I am in error, I find the Adjudicator made findings of fact at paras. 38 and 39 of his decision which were based upon the evidence before him. Therefore, the decision was reasonable.

Section 14 errors 2.1 the Adjudicator erred in declining to decide whether the Public Body was allowed to extend time outside of the time for reply under

section 11. 2.2 the Adjudicator erred in deciding that the Public Body properly extended time for replying. [ 42 ] My reasons at paras. 34-45 address these issues. I do not find the decision of the Adjudicator on this issue to be unreasonable.

Section 25 errors 3.1 the Adjudicator made an unreasonable misapplication of the harm test for withholding information to the constitution and bylaws of the SBEBA. 3.2 The Adjudicator made an unreasonable misapplication of the harm test for withholding information by finding that the Respondent met its burden of proof. [ 43 ] The Adjudicator held that the 253 pages the Respondent claimed were protected from disclosure by the FOIPP Act were protected by virtue of s. 25(1)(c)(iii) because Buffalo Trail had satisfied the “harm test”. These non-disclosed documents were provided to the Adjudicator for his review. [ 44 ] S. 25(1)(c)(iii) provides: 25

(1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to harm the economic interest of a public body or the Government of Alberta or the ability of the Government to manage the economy, including the following information: ... (

c) information the disclosure of which could reasonably be expected to

(

I) result in financial loss to, (ii) prejudice the competitive position of, or (iii) interfere with contractual or other negotiations of, the Government of Alberta or a public body; [ 45 ] The burden of establishing the information should not be disclosed rests upon Buffalo Trail. See s. 71(1) of the FOIPP Act . [ 46 ] The “harm test” was articulated by the Adjudicator at para. 74: The Applicant further notes that, in order to apply section 25(1), the Public Body must satisfy the “harm test” that has been articulated in previous orders of this Office.

There must be a clear cause and effect relationship between disclosure of the withheld information and the harm alleged; the harm that would be caused by the disclosure must constitute damage or detriment and not simply hindrance or minimal interference; and the likelihood of the harm must be genuine and conceivable (Order 96-003 at p. 6 or para. 21; Order F2009-021 at para. 44).

The Adjudicator also observed that the interference referred to in s. 25(1)(c)(iii) is interference with contractual negotiations that would cause harm to the Public Body: see para. 73. [ 47 ] The Applicant and the Respondent acknowledged the Adjudicator correctly stated the harm test for non-disclosure pursuant to s. 25. [ 48 ] The evidence the Respondent relied upon to establish the requisite harm was: 1.

The findings of fact and reasons of the Alberta Labour Relations Board in the matter of The Labour Relations Code between School Boards Employer Bargaining Authority and the Alberta Teachers ’ Association , [2007] A.L.R.B.D. No. 108. 2. The second affidavit of Shannon Melin sworn June 15, 2010. 3. The contents of the documents themselves. [ 49 ] The submissions of Buffalo Trail as to why documents should not be disclosed are summarized at para. 72 of the Adjudicator’s decision. [ 50 ] The relevant portions of Ms. Melin’s affidavit with respect to this submission are found at paras. 7 - 10 of her affidavit.

Those paragraphs state: 7. In a decision dated December 20, 2007, the Alberta Labour Relations Board held that the Applicant acted inappropriately in that it failed to bargain in good faith with the SBEBA and interfered with the formation of the SBEBA, contrary to the Labour Relations Code . The Board ’s decision is included as Document 111 of the Responsive Records. 8. This past conduct of the Applicant, as found in the Alberta Labour Relations Board decision, is of concern to the Public Body and

the other School Boards in that the disclosure of documents related to the SBEBA bylaws and constitution, financial records related to the operations of the SBEBA, and internal decision making and discussion processes of the SBEBA (evidenced in President’s Emails and the SBEBA Meeting Minutes) would provide the Applicant with confidential and internal information that it could use to further interfere with and undermine the operations of the SBEBA. 9.

In addition, the President’s Emails, internal correspondence of the SBEBA and the SBEBA Meeting Minutes contain decisions and discussions regarding the collective bargaining negotiations of each member School Board and confidential correspondence with the Minister of Education. Such information could be utilized by the Applicant in future collective bargaining negotiations to the detriment of the Public Body and to undermine the negotiating position of the Public Body and the School Boards, respectively. 10.

The constitution and bylaws of the SBEBA were prepared for, executed and sent to the member School Boards on a confidential basis, and to be only discussed in in camera meetings and not to be disclosed to any third parties. [ 51 ] The Adjudicator accepted certain findings from the December 20, 2007 decision of the Alberta Labour Relations Board; those findings are found at para. 77 of his decision. [ 52 ] The reasons of the Adjudicator on this issue are found at paras. 79 - 91 of his decision. [ 53 ] The Court received the documents in question from the Office of the Information and Privacy Commissioner of Alberta in a sealed envelope.

The order that sealed the documents permitted the justice presiding over the judicial review to review them in camera . I have reviewed the documents. [ 54 ] The Applicant’s primary argument on this issue is that the Adjudicator’s decision that the disclosure of the SBEBA constitution and bylaws fell within s. 25 of the FOIPP Act is unreasonable. The ATA submits there was no evidence upon which the Adjudicator could make his decision.

The ATA submits at para. 70 of their brief: The evidence of the Respondent’s witness Shannon Melin was that documents such as SBEBA Meeting Minutes and President’s e-mails contained information the disclosure of which might affect the bargaining position of the Respondent. But she did not include the constitution and bylaws in this category. With respect to the constitution and bylaws her evidence was merely that they were intended to be confidential to member School Boards.

She did not give evidence that the disclosure to the ATA of the constitution and bylaws was likely to cause economic harm to the Respondent. [ 55 ] The Respondent submits para. 8 of Ms. Melin’s affidavit is some evidence upon which the Adjudicator could base his decision. [ 56 ] Paras. 8 and 9 of Ms. Melin’s affidavit are conclusory statements based upon, I assume, her review of the documents in question. It is the contents of the documents themselves in relation to the other evidence and the applicable test that inform any application for non-disclosure.

For example, in The Law of Evidence in Canada (3 rd ed.) Bryant, Lederman and Fuerst, the authors state in relation to the issue of privilege at para. 14.36: In the determination of whether a privilege should be accorded to a particular communication or class of communications, and, if so, what conditions should apply, the court must consider the circumstances of the privilege claimed, the communications or documents, and the case. [ 57 ] I find the Adjudicator’s decision with respect to a number of the documents was reasonable taking into account the contents of each document, the other evidence and the applicable legal test.

However, I reviewed many documents where there is nothing in the document itself that provides any evidence to support a non-disclosure order. For example:

1. Documents 9 through 14 are the same memo dated February 27, 2007 sent by the SBEBA to various chairpersons inviting them to come to a meeting to be held to discuss an employer bargaining association. [ 58 ] To state the obvious, none of these documents is subject to non-disclosure on any basis. In addition, the above are merely examples – there are other documents in the sealed materials that are similar. [ 59 ] I also reviewed document 3 - the constitution and bylaws of the SBEBA.

Like the above documents, the contents of this document are such that there is no basis to support the Adjudicator’s finding of non-disclosure. [ 60 ] In light of the number of documents I have reviewed for which their contents provide no basis to support the finding of the Adjudicator, I find the decision of the Adjudicator respecting s. 25 of the FOIPP Act is unreasonable. [ 61 ] In light of my above finding, it is not necessary to deal with the ATA’s other argument respecting s.

Section 24 errors 4.1 the Adjudicator erred in deciding that information relating to whether SBEBA should be formed, and information relating to negotiating positions of SBEBA and the Public Body, could be withheld. [ 62 ] As a result of my findings with respect to s. 25, I find the balance of the decision of the Adjudicator respecting s. 24 of the FOIPP Act to be unreasonable.

Conclusion [ 63 ] The constitution and bylaws of SBEBA are to be released to the Applicant. [ 64 ] As some of the sealed documents do fall within ss. 24 and 25 of the FOIPP Act , I order the matter remitted to a different adjudicator for a re-hearing on the issue of non-disclosure. [ 65 ] Costs may be spoken to within 60 days of the date of judgment. Dated at the City of Calgary, Alberta this 10 th day of May, 2013.

E.A. Hughes J.C.Q.B.A. Appearances: Christin Elawny Field LLP for the Applicant, The Alberta Teachers’ Association Lorne I. Randa Brownlee LLP for the Respondent, Buffalo Trail Public Schools Regional Division No. 28 Glenn Solomon, Q.C. and Elizabeth Aspinall Jensen Shawa Solomon Duguid Hawkes LLP for the Respondent, Information and Privacy Commissioner _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice E.A. Hughes _______________________________________________________ Pursuant to the oral decision of The Honourable Madam Justice E.A.

Hughes given on the 20 th day of November, 2013 and Rule 9.12 of the Alberta Rules of Court : Paragraph 64: clauses 2 through 15 are deleted Paragraph 67: delete the word “sheer” [1] I have assumed that all references in the ATA ’ s written submissions respecting “ errors ” are within the context of the reasonableness standard in light of their submissions.