Imperial Oil Limited v Calgary (City), 2013 ABQB 393

Court of Queen ’ s Bench of Alberta Citation: Imperial Oil Limited v Calgary (City), 2013 ABQB 393 Date: 20130712 Docket: 0801 00878 Registry: Calgary In the Matter of the Freedom of Information and Privacy Act , R.S.A. 2000, C.

F-25 And In the Matter of Order F2005-030 Issued By the Office of the Information and Privacy Commissioner on December 18, 2007 Between: Imperial Oil Limited Applicant - and - City of Calgary, the Information and Privacy Commissioner of Alberta, Her Majesty the Queen In Right of the Province of Alberta, As Represented by the Minister of Environment, and the Environmental Appeals Board Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.G. Stevens _______________________________________________________ I.

Introduction [ 1 ] The City of Calgary (the “City”) sought access under the Freedom of Information and Protection of Privacy Act RSA 2000, c F-25, (“ FOIP ”) to a remediation agreement (the “Agreement”) reached between Alberta Environment (“AEV”) and Imperial Oil Limited (“IOL”). The Agreement concerned environmental remediation of lands contaminated by hydrocarbons vapours and lead. The

Information and Privacy Commissioner (the “Commissioner”) directed that AEV must disclose the whole of the Agreement. IOL has applied for judicial review of that Order. [ 2 ] The Hearing before me was originally scheduled for November 12, 2009. At that time one of the issues was whether the Commissioner had lost jurisdiction as a result of a failure to complete the inquiry within the time stipulated by s 69(6) of FOIP .

The same question was at issue in another appeal: Alberta (Information and Privacy Commissioner) v Alberta Teacher ’s Association , 2011 SCC 61 , [2011] 3 SCR 654, aff’g 2010 ABCA 26 , 474 AR 169 ( ATA ). Consequently the Application was adjourned pending receipt of the decision of the Alberta Court of Appeal.

The Court was subsequently advised that the decision of the Alberta Court of Appeal in the ATA case was being appealed to the Supreme Court and the application was again adjourned pending receipt of the decision of the Supreme Court of Canada. [ 3 ] As a result of the Supreme Court of Canada’s decision in ATA , the Applicant withdrew its submissions that the Commissioner had lost jurisdiction in this matter due to a failure to comply with the timeline set out in FOIP . II. Background [ 4 ] Lynnview Ridge is a residential subdivision in the City of Calgary.

From 1923 to 1975, those lands had been operated by IOL in conjunction with a petroleum refinery located on an adjacent property. The City approved development of Lynnview Ridge as a residential subdivision. Petroleum and lead contamination were subsequently detected in the soil. [ 5 ] The need to remediate the site, to what standard, and the responsibilities of the parties, were the subject of protracted regulatory and court proceedings. AEV is responsible for environmental regulation under the Environmental Protection and Enhancement Act RSA 2000, c E-12 (“ EPEA ”).

It took regulatory action starting in 2001 regarding the contamination. AEV issued a number of environmental protection orders (“EPO”) and IOL contested them. [ 6 ] In the midst of two appeals to the Environmental Appeals Board (the “EAB”) but prior to the hearing of the appeal, AEV and IOL engaged in mediation. AEV, IOL, the EAB, the Calgary Health Region and the residents of Lynnview Ridge attempted to find a satisfactory solution through non-binding mediation. The City was invited to participate in the mediation but declined to do so.

The City is the authority which approves subdivisions and had approved the residential development of the Lynnview lands; it is also a significant land owner in the area. [ 7 ] The mediation was successful. The resulting agreement of the parties is contained in the Remediation Agreement dated March 31, 2005. [ 8 ] The City applied under FOIP for access to the Agreement. AEV refused to release the Agreement.

The City asked the Office of the Information and Privacy Commissioner (“OIPC”) to review AEV’s decision to withhold the Agreement. [ 9 ] By Order F2005-30, issued on December 18, 2007, the Commissioner directed that AEV must disclose the whole of the Remediation Agreement (with a few minor exceptions that are not relevant to this Application). III. Facts [ 10 ] From 1923 to 1975, IOL owned and operated a refinery on lands immediately north of Lynnview Ridge, and storage tanks on part of the lands in Lynnview Ridge.

Other parts of those lands were used for a “land farm” where petroleum sludge was treated by spreading it on open lands. This occurred prior to any statutory environmental restrictions on the release of contaminants. [ 11 ] The refinery, holding tanks, and land farms were decommissioned between 1975 and 1977. There were no regulatory

standards relating to soil contaminated by lead or hydrocarbons contamination at that time. [ 12 ] The lands were later developed into a residential subdivision. Devon Estates Ltd., a wholly owned subsidiary of IOL, provided the lands in a joint venture with Nu-West Developments who provided development expertise.

The City granted the necessary development approvals. [ 13 ] The cleanup undertaken by IOL did not meet today’s standards for residential land use, such that the levels of hydrocarbon vapours and lead in the soil exceeded the levels which are currently acceptable. [ 14 ] Environmental concerns arose, primarily related to hydrocarbon vapours and lead found in soil samples.

These concerns were brought to the attention of AEV. [ 15 ] In 1997, the Canadian Council of Ministers of the Environment issued cleanup guidelines for lead in residential soil; AEV adopted these guidelines. [ 16 ] In 2001, AEV, the Calgary Health Region, the City and IOL discussed concerns arising from soil testing in Lynnview Ridge.

The residents were notified of the issues relating to the presence of lead and hydrocarbon vapours, and both IOL and the City were advised that, under environmental legislation, they may have responsibility for the contaminants. [ 17 ] On May 28, 2001, AEV issued a Notice of Investigation, advising the City and IOL that an investigation and further steps may be taken. [ 18 ] On June 25, 2001, AEV issued an EPO naming IOL and Devon Estates as “persons responsible” under the EPEA for the contamination, and directing them to take various steps.

These steps included sampling, delineating and reporting on soil contamination; outlining the short-term measures that would be taken to address the risks; consulting with the residents and developing a

schedule for all measures. The parties were also directed to submit a report containing all options to remediate the subsurface contamination at the subdivision by July 18, 2001. [ 19 ] On July 3, 2001, IOL and Devon Estates Ltd. appealed the EPO to the EAB. A hearing date was set for September 2001. [ 20 ] In August 2001, IOL took steps to deal with the short-term risks to the residents, and the company provided various reports to the Director.

Between August 2001 and April 2005, IOL voluntarily purchased more than 140 of the 160 single-family homes in the subdivision and the two town home complexes. [ 21 ] IOL and AEV then undertook a number of legal proceedings, including a hearing before the EAB which was subsequently judicially reviewed by the Court of Queen’s Bench. [ 22 ] The decision of the Court of Queen’s Bench was delivered on April 30, 2003.

In response to that decision, AEV issued two new EPOs to IOL on August 29, 2003. [ 23 ] In September 2003, IOL appealed both of the new EPOs and IOL and AEV requested that the hearing be adjourned for mediation to occur. b. The Mediation

[ 24 ] In 2003, IOL and AEV canvassed the possibility of attempting to settle all of their issues through mediation. The EAB encouraged this initiative, provided a mediator and convened the initial meetings. [ 25 ] The City, the Calgary Health Region and the remaining landowners were invited to participate in the process.

The Calgary Health Region and the remaining landowners accepted this invitation but the City declined. [ 26 ] AEV, the Calgary Health Region and the Lynnview Ridge Residents Action Committee executed an Agreement to Mediate on October 27, 2003 which expressly provided that all communications arising from the mediation process and all information disclosed in conjunction with the mediation “must be kept forever more strictly confidential” and could not be disclosed publicly or to any third party or publicly. [ 27 ] Mediation commenced in November 2003.

Under the umbrella of confidentiality information was disclosed and compromises were made in pursuit of a settlement; additional issues outside of the formal EPOs and the appeal to the EAB were resolved. [ 28 ] As a result of the mediation: 1. The Agreement dated March 31, 2005 was signed by the Minister of Environment, on behalf of her Majesty the Queen in Right of Alberta and Alberta Environment; the Director, Environment in and for Alberta Environment; Devon Estates Limited; and Imperial Oil Limited. 2. The two outstanding EPOs were cancelled. 3.

IOL withdrew its appeal of the two new EPOs to the EAB. [ 29 ] The signing of the Agreement enabled the clean up of Lynnview Ridge properties and nearby lands to begin. Despite the termination of the regulatory litigation the matter has not ended. The parties have ongoing obligations under the Agreement. IOL has ongoing duties pursuant to the Agreement and the provisions of the EPEA and AEV retains regulatory oversight of the matter. [ 30 ] IOL and AEV assert that the Agreement is confidential. c.

FOIP Proceedings [ 31 ] On April 5, 2005, AEV released certain information about the Agreement in the form of a press release. [ 32 ] By written “request to Access Information” dated April 18, 2005 and addressed to AEV, Mr. Martin Bobyn acting on behalf of the City requested a copy of the Agreement. [ 33 ] By letter dated April 21, 2005, and addressed to Mr. Bobyn, AEV acknowledged receipt of Mr. Bobyn’s request. [ 34 ] By letter dated April 27, 2005, AEV provided more detailed information to the Calgary Health Region, in particular copies of Exhibit 10,

Schedule K; Exhibit 8; Exhibit 9,

Schedule I; Exhibit 9,

Schedule J and Exhibit 1,

Schedule B of the Agreement. [ 35 ] By letters dated April 27 and 28, 2005, AEV provided more detailed information to the residents of Lynnview Ridge, in particular copies of Exhibit 10,

Schedule K; Exhibit 8; and Exhibit 1,

Schedule B of the Remediation Agreement, and a draft letter from AEV regarding completion of remediation.

[ 36 ] By letter dated May 5, 2005, AEV disclosed parts of the Agreement to the City. In particular, AEV provided to the City copies of Exhibit 10,

Schedule K; Exhibit 8; and a copy of Exhibit 1,

Schedule B to the Agreement. AEV also provided selected provisions of the Agreement being “those that refer to or may affect the City of Calgary” and an updated map. This letter stated: All of this information is provided to you in confidence and on the express trust condition that it may not be copied or otherwise distributed beyond, or its contents in any way communicated to anyone other than a limited number of “need to know” individuals at the City that we can discuss and agree upon prior to any release.

Imperial and Alberta Environment will not be unreasonable in the scope of this list, or to later amendments to the list, but it must be restricted. [ 37 ] AEV, by letter dated May 19, 2005, advised Mr. Bobyn that a third party must be notified and given an opportunity to make representations concerning the requested disclosure of the Agreement. [ 38 ] By letter dated June 30, 2005, AEV advised Mr. Bobyn that disclosure of the requested document had been refused. [ 39 ] Mr.

Bobyn, by letter dated July 12, 2005 and addressed to the Information and Privacy Commissioner requested a review of AEV’s decision. [ 40 ] By letter dated July 14, 2005, addressed to Mr. Bobyn, the Commissioner confirmed receipt of the request for a review and advised that the anticipated date for a decision of this review was October 12, 2005. [ 41 ] By letter dated August 29, 2005, OIPC advised Mr. Bobyn as to the likely issues for the inquiry and that these issues would be confirmed by the Commissioners Inquiries Clerk to Mr.

Bobyn and the other involved parties (AEV and IOL). [ 42 ] By letter dated October 13, 2005, OIPC advised Mr. Bobyn that the Commissioner had decided to conduct a written inquiry into this matter. This letter also named the parties to the Inquiry, the Issues which the Commissioner wanted the parties to address (without limitation), and gave directions for the submission of the initial and rebuttal briefs. Specific reference is made to Practice Note 8. Similar letters, of the same date, were sent to AEV and IOL. [ 43 ] On November 3, 2005, AEV provided a copy of Exhibit 10,

Schedule L of the Agreement to the City.

This letter stated: As with the other portions of the Remediation Agreement that were provided to you under cover of my letter of May 5, 2005, this information is provided to you in confidence and upon the express condition that it is not to be copied or otherwise distributed or its contents communicated to anyone other than the “need to know individuals” that have been identified and agreed upon. [ 44 ] On December 23, 2005, following receipt of submissions from all three parties the OIPC advised the parties that the EAB was granted limited intervener status, with permission to address its own processes, mediation in general, and the perceived consequences of disclosure of the record at issue on the operation of the EAB.

A similar letter was sent to Mr. Sims, counsel for the EAB. [ 45 ] On January 27, 2006, the submissions of the EAB were filed with the OIPC. [ 46 ] IOL filed its final submissions on February 9, 2006. The final submissions of AEV were filed on February 10, 2006. These final submissions included a response to the EAB’s submissions. [ 47 ] On July 14, 2007, the Reasons for Judgment of the Court of Queen’s Bench of Alberta in Root Canada v. Alberta (Information & Privacy Commissioner), 2007 ABQB 499 , 434 AR 311 were released. In that case, Mr. Justice Belzil held that the

Commissioner had lost jurisdiction as a result of his failure to comply with the statutory 90 day time line in the Personal Information Protection Act (PIPA).

The FOIP Act contains identical time lines. [ 48 ] By three separate letters dated August 16, 2007, addressed to counsel for the City, AEV and IOL, the Commissioner advised that he was extending the time for completing the review of the case file. [ 49 ] The decision of the Commissioner was rendered on December 18, 2007 as Order F2005-030. [ 50 ] The Originating Notice herein was issued on February 1, 2008. [ 51 ] Neither the Calgary Health Region nor the Lynnview Ridge residents have made any request under FOIP regarding the Agreement. IV. Decision of the Commissioner, Order F2005-030 [ 52 ] In

summary, the Commissioner found that with regard to s 16 of FOIP (disclosure harmful to business interests of a third party), most of the information in the Agreement which the affected party said was its commercial, financial, scientific and technical information had not been supplied in confidence to the public body. Even if it had been, the EPEA authorized disclosure of the information, and s 16(1) was therefore inapplicable by reference to s 16(3). [ 53 ] The Commissioner concluded that s 16(3) of FOIP will only apply if the requirements of s 16(1) are met. Here, because the requirements of s 16(1) were not met, it was not necessary to consider whether s 16(3)(

b) created an exception to the application of s. 16(1).

Nonetheless, the Commissioner considered this issue and concluded that, even if the information was supplied in confidence to EAV, it fell squarely within the terms of Ministerial Order 23.2004 made under the authority of the EPEA and consequently it was information that must be disclosed to the public. [ 54 ] A single exception that the Commissioner found could properly be withheld was contained in Exhibit 7 to the Agreement. [ 55 ] With regard to s 17 of FOIP , the Commissioner held that it would be proper to withhold the personal information of third parties. [ 56 ] With regard to s 27 of FOIP (settlement negotiation privilege) he determined that this privilege applies to communications made during the course of negotiating an agreement but not to the Agreement itself: (i) “Settlement negotiation privilege” applies to communications made during the course of negotiations, but not to the settlement itself.

Section 27 of the Act thus did not bar the disclosure of the Agreement. (para. 67(1)). (ii) In the event that conclusion was in error, the Commissioner considered in the alternative the Wigmore criteria for application of a privilege to protect a relationship and found that they do not apply. Rather, he found that the balancing is to be done by weighing the competing public policies that favour withholding on the one hand and disclosure on the other.

The balancing is done in the context of a known legal proceeding; the competing goals are providing relevant evidence and encouraging negotiated settlements. (iii) If there is a case by case privilege for settlement agreements, it arises and the weighing is done, relative only to the settlement of private disputes rather than those that have a public interest element and an associated policy of openness.

(iv) Even if such a weighing is done in this case, the public policy of openness in the regulatory process favours a procedure that makes it clear that the public should know about the outcomes of mediated solutions to regulatory problems. (

v) A case-by case privilege does not apply to the Agreement because only two of the five criteria set out by AEV apply. [ 57 ] Section 24(1) (advice from officials, information for contractual negotiations) protects information exchanged during the currency of negotiations, but does not extend to the results of those negotiations. The Agreement was the result of negotiations and thus was not captured by this section. The ongoing regulatory relationship between the parties did not change this conclusion.

With respect specifically to ss 24(1)(a) (advice developed by a public body) and 24(1)(c) (positions, plans, etc., developed by a public body), no part of the Agreement or the exhibits attached to it was wrong to have been developed by or on behalf of the Public Body. [ 58 ] The Commissioner found that pursuant to s 25(1)(c)(iii) of the FOIP (disclosure harmful to economic or other interests of the public body): disclosure of the Agreement would not harm the public body’s interest by making it impossible for it to perform its statutory mandate to require responsible persons to meet their duties.

Neither could the public body rely on harm that might be caused by requiring it to breach a contract in order to keep the Agreement confidential. It had not clearly entered into such a contract.

Even had it done so, it is not permitted to contract out of obligations under FOIP and then rely on the contract to establish harm. [ 59 ] The Commissioner did not deal with s 32 as it was not necessary except in relation to the two minor categories of information that may properly be withheld. [ 60 ] The Commissioner ordered the Public Body to disclose to the Applicant the entire Agreement, except certain items of personal information, which he agreed must be severed, and Exhibit 7. [ 61 ] At the outset of the application, counsel for the Commissioner requested, and I granted standing with an expanded scope beyond speaking to the standard of review, and that expanded scope mirrors the points based in their revised brief of law at para 28.

V. Issues [ 62 ] The issues raised are: a. Preliminary Issue - Scope and Participation of the Commissioner b. Standard of Review 1. Position of the Parties c. The Law - General Principles 1. The presence or absence of a privative clause 2. The nature of the issue 3. The expertise of the tribunal 4. The purpose of the legislation d.

Section 16 of FOIP 1. Section 16(1)(a) - Commercial and Financial Information 2. Section 16(1)(a) - “of a third party” 3. Section 16(1)(a)- Information that is “supplied, explicitly, or implicitly in confidence” 4. Section 16(1)(c) - Consequences of Disclosure

5. Section 16(3) e.

Section 27 - Privileged Information f. Section 24(1) - Advice to or from Officials g.

Section 25 - Disclosure Harmful to a public body VI. Analysis a. Preliminary Issue [ 63 ] As a preliminary matter, IOL raised an issue in relation to the scope of participation of the Commissioner. IOL took the position that the written and oral submissions of the Commissioner should be restricted to the standard of review. Counsel for the Commissioner submitted he should have an expanded role beyond the standard of review. Argument was made and I issued an oral ruling. [ 64 ] In

summary, I permitted the Commissioner standing with an expanded scope beyond speaking to the standard of review, but restricted him to the points raised in the written brief which are as follows:

(1) Standard of review;

(2) An explanation of the record;

(3) Matters going to jurisdiction;

(4) Issues defending the reasonableness of the decision;

(5) Matters that draw the attention of the Court to those considerations rooted in the specialized jurisdiction and expertise of the tribunal;

(6) Issues that will ensure that this Court can make a fully informed adjucation having regard to the tribunal’s specialized function; and

(7) Issues which raise the Commissioner’s jurisdiction. [ 65 ] The EAB was also represented at this Hearing. The Commissioner’s adjudicator granted the EAB a limited opportunity to address its concern without full intervener status. It was permitted and the EAB made submissions on the following issues:

(1) The mediation process employed by the EAB;

(2) How the EAB mediation process interacts with the provisions of the Freedom of Information and Protection of Privacy Act ;

(3) The mediation process in general; and

(4) The perceived consequences of disclosure of the record at issue in the operation of the EAB. [ 66 ] The EAB participated in this hearing in a similar limited way, and for the same purpose that it participated in the Commissioner’s proceedings. The EAB’s interest is to explain and protect the integrity of its dispute resolution processes. Its interests are based on the impact of the Commissioner’s decision on the Board’s practices and procedures, and on its reputation for upholding the expectations created by its processes.

None of the parties took issue with the Board’s submissions on this limited basis. [ 67 ] AEV also appeared and made submissions, both written and oral on a limited basis. AEV took a position on the following two issues:

The standard of review, and analysis, within that standard, of the Commissioner’s decision interpreting whether the Remediation Agreement is confidential and privileged, and The standard of review, and analysis within that standard, of the decision interpreting the Environmental Protection and Enhancement Act and regulations pursuant to that Act, or any Ministerial Order made under that Act. [ 68 ] There were no objections to the participation of the EAB or AEV. b. Standard of Review I. Position of the Parties Imperial Oil [ 69 ] According to IOL, the

interpretation of the statute in question, is a question of law and the

interpretation of a contract is a question of law. The Commissioner erred in law by misinterpreting the provisions of the Agreement to Mediate and the Remediation Agreement. Frequently, his errors are attributable to his mischaracterization of the proper legal test. [ 70 ] Further, issues such as privilege and confidentiality and the prohibition against adding words to or deleting words from a statute are at least as important to the legal system as a whole as the doctrine of res judicata - the benchmark set in Dunsmuir v New Brunswick, 2008 SCC 9 , [2008] 1 SCR 190.

IOL then reviewed the standard of review analysis with respect to each issue in this hearing and the end result was that the standard of review is correctness on all issues. City of Calgary [ 71 ] The City submitted that the standard of review on all issues in regard to this decision is that of reasonableness. The City reviewed the following factors: 1. Privative Clause:

Section 73 of FOIP provides that “An order made by the Commissioner under the Act is final.” 2. Discrete and Special Administrative Regime: FOIP provides the Commissioner with a discreet and special administrative regime in which the Commissioner has special expertise. This case involves the Commissioner’s

interpretation of FOIP . 3. The Nature of the Question: The question before the Commissioner was whether the Public Body could refuse to disclose the record to the City, a question of mixed fact and law. Alberta Environment (AEV) [ 72 ] AEV submitted that although the Commissioner was interpreting his home statute, he was equally interpreting the EPEA and the related regulations. Any reasonable review of the Commissioner’s decision reveals that his

interpretation of the EPEA formed the foundation for his entire decision. Because of the way that the

interpretation of the EPEA formed a fundamental basis for everything else that the Commissioner did, the review of his decision ought to be done on a standard of correctness. Further, this case is of central importance to the legal system and outside the Commissioner’s expertise. Counsel for the Commissioner

[ 73 ] Counsel for the Commissioner submitted that interpreting FOIP does not raise issues of general legal importance nor true jurisdiction. The Commissioner specifically submitted that none of the decisions within the Order are matters of “true jurisdiction” to which the correctness standard would apply. The Commissioner further submitted that each decision the Commissioner made in the Order is subject to a reasonableness review: each issue before the Commissioner required the

interpretation of one of the Commissioner’s home statutes which itself includes a partial privative clause. Further, the issues engaged the Commissioner’s expertise and his findings were firmly grounded in the facts before him. EAB [ 74 ] The EAB comments on only one matter, and that is the underlying policy behind a deferential standard of review. EAB submitted that the Commissioner substituted his own view of s 12 of the Environmental Appeal Board Regulation and discounted rather than accorded deference to the EAB’s own approach. The EAB submitted that the Commissioner should have accorded at least as much deference to the EAB’s

interpretation of s 12 as it would the courts. Specifically, EAB stated at para 40 of its Brief: Indirect support for the same concept comes from the last of the exceptions to the “reasonableness” standard listed in Dunsmuir at paragraph 61 . Where a tribunal is dealing with the jurisdictional line between two tribunals, each with arguable jurisdiction, correctness, not reasonableness, applies. This is, in part, because what the legislature intended for one tribunal ought not to be subject to a second tribunal’s contrary view: the Courts should decide the matter in a manner binding on each of them.

This suggests that the reasonableness standard cannot be applied to the Commissioner’s decision on the meaning of

section 12 of the Environmental Appeals Board Regulation. c. The Law - General Principles [ 75 ] The standard of review in this case is governed by Dunsmuir. In Dunsmuir , the Supreme Court reviewed the process by which the standard of review is to be determined and held that the two variances of reasonableness review, reasonableness simpliciter and patent unreasonableness should be changed to a single form of “reasonableness”. The Court stated “the result is a system of judicial review comprising two standards: correctness and reasonableness.” at para 45.

Consequently, administrative decisions must now be reviewed either on a “correctness” or on a “reasonableness” basis. Two -step Test [ 76 ] The method for determining the appropriate standard of review remains much the same, Dunsmuir. First, courts must ascertain whether the jurisprudence has already being determined in a satisfactory manner the degree of deference accorded to a particular category of questions. Second, if the inquiry proves unfruitful, courts must proceed to an analysis of the factors to determine whether reasonableness or correctness applies: Dunsmuir at paras 62-63 : In

summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. The existing approach to determining the appropriate standard of review has commonly been referred to as "pragmatic and functional". That name is unimportant.

Reviewing courts must not get fixated on the label at the expense of a proper understanding of what the inquiry actually entails. Because the phrase "pragmatic and functional approach" may have misguided courts in the past, we prefer to refer simply to the "standard of review analysis" in the future. [ 77 ] As to the first step, these “particular categories of questions” were summarized by the Supreme Court of Canada in Smith v Alliance Pipeline Ltd., 2011 SCC 7 , [2011] 1 SCR 160, where Fish J. (writing for all the Court except for Deschamps J.) stated at para 26:

Under Dunsmuir , the identified categories are subject to review for either correctness or reasonableness. The standard of correctness governs: (1) a constitutional issue; (2) a question of "general law” that is both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise'" ( Dunsmuir , at para. 60 citing Toronto (City) v . C.U.P.E. , Local 79, 2003 SCC 63 , [2003] 3 S.C.R. 77, at para. 62 ); (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a "true question of jurisdiction or vires " (paras. 58-61).

On the other hand, reasonableness is normally the governing standard where the question: (1) relates to the

interpretation of the tribunal's enabling (or "home") statute or "statutes closely connected to its function, with which it will have particular familiarity" (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues (paras. 51 and 53-54). [ 78 ] Reasonableness is normally the governing standard when the question relates to the

interpretation of the tribunal’s home statute closely connected to its function with which it will have particular familiarity; raises issues of fact, discretion or policy; or involves inextricably intertwined legal and factual issues. [ 79 ] The principles and two step process laid down in Dunsmuir have been reaffirmed and restated by the Supreme Court of Canada in Smith and in Nor-Man Regional Health Authority Inc. v Manitoba Association of Health Care Professionals , 2011 SCC 59 , [2011] 3 SCR 616.

Fish J. for the court in Nor-Man stated at paras 39-40: Moreover, the second step of the standard of review inquiry mandated by Dunsmuir -- a contextual analysis -- confirms that reasonableness, not correctness, is the appropriate standard of review. In proceeding to a contextual analysis, reviewing courts must remain sensitive to the tension between the rule of law and respect for legislatively endowed administrative bodies ( Dunsmuir , at para. 27 ).

Four non-exhaustive contextual factors have been identified in the jurisprudence to guide courts through this exercise: (1) the presence or absence of a privative clause; (2) the purposes of the tribunal; (3) the nature of the question at issue; and (4) the expertise of the tribunal ( Dunsmuir , at para. 64 ). [ 80 ] In the ATA decision, the Supreme Court of Canada stated that there is a presumption of reasonableness when the Commissioner is interpreting his own statute. The Court stated at para 34: ...anything a tribunal does that involves the

interpretation of its home statute involves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review...it is sufficient in these reasons to say 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. Application of the Standard of Review Analysis [ 81 ] In applying the first step of the Dunsmuir analysis, there is recent, post- Dunsmuir jurisprudence regarding the standard of review applicable to certain decisions of the Commissioner. Here, the Supreme Court of Canada has indicated that when tribunals are interpreting their own statute or statutes closely connected to its functions, the decision is reviewable on a reasonable standard. Specifically, in this case the Supreme Court was dealing with the Information and Privacy Commissioner.

The Supreme Court stated at paras 30 -31: The narrow question in this case is: Did the inquiry automatically terminate as a result of the Commissioner extending the 90-day period only after the expiry of that period? This question involves the

interpretation of s. 50(5) PIPA, a provision of the Commissioner's home statute. 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" ( Dunsmuir , at para. 54 ; Smith v. Alliance Pipeline Ltd. , 2011 SCC 7 , [2011] 1 S.C.R. 160, at para. 28 , per Fish J.). 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, ... '[q]uestions regarding the jurisdictional lines between two or more competing specialized tribunals' [and] true questions of jurisdiction or vires " ( Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2011 SCC 53 , [2011] 3 S.C.R. 471, at para. 18 , per LeBel and Cromwell JJ., citing Dunsmuir , at paras. 58, 60-61 ).

The timelines question is not a constitutional question; nor is it a question regarding the jurisdictional lines between two or more competing specialized tribunals. And it is not a question of central importance to the legal system as a whole, but is one that is specific to the administrative regime for the protection of personal information. The timelines question engages considerations and gives rise to consequences that fall squarely within the Commissioner’s specialized expertise. [ 82 ] The rationale for extending deference to a tribunal’s

interpretation of its home statute was also discussed by Justice Ross in IMS Health Canada Ltd v Alberta (Information and Privacy Commissioner) 2008 ABQB 213 . The Commissioner ruled that the manner in which the Applicant collected prescription information violated the Health and Information Act, RSA 2000, c H-5 . The Court determined that the

interpretation of “other information” in s 37(2)(

a) of the Health Information Act, although it had precedential significance, should be assessed on a reasonableness standard because of the Commissioner’s expertise relating to that statute. [ 83 ] Is this is a case where the jurisprudence has determined the degree of deference to be accorded? The jurisprudence suggests that it should be presumed that the appropriate standard of review is reasonableness when considering a decision of an administrative tribunal applying its own statute. In my view, the Commissioner has significant expertise in interpreting his home statute. His decisions relating to the

interpretation of FOIP relate to his home statute and should be reviewed on the reasonableness standard. [ 84 ] However, in my view, there are multiple issues in the present case, some of which involve the application of the home statute and others which consider legislation outside of the scope of the Commissioner’s expertise. Therefore the same standard of review cannot be applied for each issue. In my view, the ATA decision instructs me that deference is owed to the Commissioner when he is interpreting his home statute.

However, with respect to the issues where he is interpreting the EPEA, a different standard may apply, as at times he is interpreting other statutes that are not closely related to the Commissioner’s enabling statute. Application of the Reasonableness and Correctness Standard [ 85 ] The reasonableness standard requires the reviewing court to give due consideration to the decision-maker’s determinations.

Deference in this context is defined in Dunsmuir at para 49 : Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers. As Mullan explains, a policy of deference "recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime": D. J.

Mullan, "Establishing the Standard of Review: The Struggle for Complexity?" (2004), 17 C.J.A.L.P. 59, at p. 93.

In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system. [ 86 ] In Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 , [2009] 1 SCR 339, the Supreme Court of Canada clarified its discussion in Dunsmuir of what constitutes reasonableness.

The Court stated at para 59: Reasonableness is a single standard that takes its colour from the context. One of the objectives of Dunsmuir was to liberate judicial review courts from what came to be seen as undue complexity and formalism. Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within "a range of possible, acceptable outcomes which are defensible in respect of the facts and law" ( Dunsmuir , at para. 47 ). There might be more than one reasonable outcome.

However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome. [ 87 ] The correctness standard requires the court to undertake its own analysis of the question. No deference is shown to the decision maker’s reasoning process. If the court does not agree with the decision maker’s determination, the court will substitute its own view and provide the correct answer: Dunsmuir at para 50 .

d.

Section 16 of FOIP [ 88 ] The Inquiry required the Commissioner to review the Record and determine if any of the exceptions to disclosure contained within FOIP applied to allow the public body to refuse to disclose the Record. These exceptions are found in s 16 of FOIP which provides: Disclosure harmful to business interests of a third party 16(1) The head of a public body must refuse to disclose to an applicant information (

a) that would reveal (

i) trade secrets of a third party, or (ii) commercial, financial, labour relations, scientific or technical information of a third party, (

b) that is supplied, explicitly or implicitly, in confidence, and (

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

i) harm significantly the competitive position or interfere significantly with the negotiating position of the third party, (ii) result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied, (iii) result in undue financial loss or gain to any person or organization, or (iv) reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into a labour relations dispute.

(2) The head of a public body must refuse to disclose to an applicant information about a third party that was collected on a tax return or collected for the purpose of determining tax liability or collecting a tax. (3) Subsections (1) and (2) do not apply if (

a) the third party consents to the disclosure, (

b) an enactment of Alberta or Canada authorizes or requires the information to be disclosed, (

c) the information relates to a non-arm’s length transaction between a public body and another party, or (

d) the information is in a record that is in the custody or under the control of the Provincial Archives of Alberta or the archives of a public body and has been in existence for 50 years or more.

[ 89 ] Section 16(1) sets out a narrow exception to the principle that any person has a right to access the records in the custody or under the control of a public body. All three elements of s 16(1) must be satisfied before the exception applies. It must be shown that the Agreement contains information of the sort described in subsection 16(1)(a), that this information was supplied in confidence, and that the disclosure of the information could reasonably lead to the consequences set out in subsection 16(1)(c). 1.

Section 16(1)(a)(ii): Did the Agreement Contain Commercial and Financial, Scientific or Technical Information? [ 90 ] The Commissioner’s reasoning is found at para 21 of his decision: The first question is whether the information falls under either 16(1)(a)(

i) or (ii). The Affected Party has provided submissions on this point. In its open submission it says that the Agreement contains its commercial, financial, scientific and technical information, but does not specify which parts of the Agreement contain such information. In its closed submission it narrows its claim to one that the Agreement contains its commercial and financial information. It describes which parts of the Agreement consist of its commercial and financial information.

With respect to commercial information, it says this consists of the parts of the Agreement that define its responsibility for remediating the site. With respect to financial information, it says this consists of the costs it will incur in the remediation process and the timing of these costs.

It also says that the specifics of its remediation obligations will affect the future use and value of its property in the site. [ 91 ] The Commissioner accepted that some but not all of the Agreement contained the Affected Party’s financial information. [ 92 ] With respect to scientific and technical information, the Commissioner stated at para 23: In its rebuttal submission, the Affected Party includes another assertion that the Agreement contains its scientific and technical information.

This assertion relies on the Applicant’s statement that it seeks to discover “what environmental clean-up standards are being applied to lands” and “the scientific basis used to set those standards”. While I see that this can be described as scientific and technical information, I have no basis on which to conclude that this is scientific and technical information of the Affected Party.

Though some of the Exhibits (#’s 8 to 10) contain correspondence directed to the Affected Party, some of these same documents indicate that they were developed at the request of the Public Body or in consultation with it, and one pertains to work that, as disclosed in the press releases, was to be the responsibility of the Public Body. Neither the Public Body nor the Affected Body asserted that these particular documents constituted scientific or technical information of the Affected Party. Thus, without more, I cannot find that this is the case.

Position of the Parties [ 93 ] During the course of this Hearing, IOL submitted the following points: (

a) The Commissioner made no finding as to whether or not the Remediation Agreement contained “commercial information”. (

b) The Commissioner found that “some parts” of the Remediation Agreement contains IOL’s financial information. (

c) The Commissioner conceded that the Remediation Agreement contained scientific and technical information but stated that he had no “basis on which to conclude that this was scientific and technical information of the Affected Party.” (

d) Notwithstanding the foregoing, he found (at para. 29 of the Order) that the requirements of s. 16(1)(

a) had not been met. [ 94 ] The City submitted that this point was a finding of fact by the Commissioner and neither the public body nor IOL provided any evidence to the contrary. The findings of fact are to be given deference by this Court. [ 95 ] Counsel for the Commissioner submitted that the Commissioner described the commercial and financial information in as much detail as possible, given the restrictions created by the in camera submissions. He then held that some of the information is IOL’s

financial information. [ 96 ] Counsel for the Commissioner concedes that there is an inconsistency between the Order which states in para 29: “As I have concluded that neither section 16(1)(

a) nor 16(1)(

b) are met” and that the conclusion expressed in the same paragraph of the Order that “some parts of the Agreement contain financial information”. Counsel for the Commissioner argued that this is a minor error which inadvertently overlooks the earlier finding but has no bearing on the thrust of the statement; which is that the failure to meet any part of the provision is fatal to an application and on this account it is not necessary to consider whether s 16(1)(

c) applies. Conclusion [ 97 ] For the reasons stated above, the standard of review is reasonableness. The application of the reasonableness standard involves an assessment of both the reasons and the outcomes of a decision: Edmonton Police Service v Alberta (Information and Privacy Commissioner) 2012 ABQB 595 .

Further, 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 . [ 98 ] In my view, it flies in the face of logic that this Agreement does not contain “commercial” information. The Agreement addresses the obligations of IOL and the rights of IOL in relation to the remediation of the subject lands.

The Commissioner does not elaborate in his decision as to why he found that it did not contain commercial information. There were inadequate reasons on this issue. I would agree with IOL that this is not reasonable as it is not transparent, and it must be transparent to be reasonable. [ 99 ] The Commissioner appears to accept that there is scientific and technical information contained within the Agreement but determines that there is no basis to conclude that it is scientific and technical information “of the third party”.

With respect to financial information, the Commissioner found that some, though not all, parts of the Agreement contain the affected parties financial information. At this stage, the Commissioner made an error as initially he says that 16(1)(

a) is satisfied however he later states that it is not satisfied. Again there is no transparency nor internal consistency to this decision and it is therefore unreasonable in the result. 2. Section 16 (1)(a)(ii): “of a third party ” Position of the Parties [ 100 ] IOL submitted that the Commissioner’s inability to ascertain the ownership of this information speaks volumes regarding his lack of expertise in legal matters. If this information is not information of IOL, then whose information is it? According to IOL, the Commissioner applies a theory of non-ownership which is otherwise unknown to law.

The Commissioner’s theory of non-ownership appears to overlook the principle that property must have an owner. Consequently, according to IOL, the Commissioner’s analysis is flawed. [ 101 ] The AEV argued that if the Commissioner’s analysis were to be applied here there would be a great deal of information submitted to AEV by third parties that would not fall within “of a third party” for the purposes of s 16, for the sole reason that AEV provided direction to ensure that the appropriate information was submitted in a timely way.

This finding appears to include information submitted pursuant to direction in regulations or guidelines or other documents enacted or developed with the involvement of AEV. [ 102 ] Counsel for the Commissioner argued that the information could just as equally and reasonably belong to EAB as IOL. With respect, a mere assertion of ownership does not make it so. Counsel for the Commissioner submitted that IOL failed to establish a factual basis on which the Commissioner could conclude that the information belonged to IOL.

In the absence of such evidence, given the burden imposed on AEV by s 71(1) of FOIP in the inquiry to prove that the City had no right of access to the information, and considering the public policy objectives of the Act, the Commissioner reasonably concluded that the Agreement must be disclosed. Contrary to IOL’s assertions, the Commissioner did not decide the issue on the basis of a theory of non-ownership; rather, he applied the test in s 16(1)(

a) of FOIP and based on the evidence before him, reasonably concluded that the information should be disclosed. Given that it is reasonable, the Commissioner’s decision should not be overturned.

[ 103 ] The City of Calgary submitted that the Commissioner made a finding of fact that the documents were developed in consultation with , or in one case, at the request of the public body. This finding of fact made by the Commissioner is based on the evidence given by the parties to the Inquiry. There is no contrary evidence before this Court. Conclusion [ 104 ] The standard of review is reasonableness. [ 105 ] In order for the exception to disclosure under s 16 to apply the information supplied must be “information of a third party” [emphasis added].

The Commissioner found that AEV’s involvement in information submitted to AEV meant that the information did not meet the criteria. [ 106 ] In my view, the evidence indicates that the information belonged to IOL. The Commissioner’s conclusion that the information does not belong to IOL is flawed. The Commissioner specifically refers to Exhibits 8, 9, and 10 of the Remediation Agreement which contain the five reports prepared by an engineering firm.

In a box on the first page, the documents state that the documents and information contained in them are the confidential property of IOL. [ 107 ] The Commissioner’s decision on this point is unreasonable. The decision involves an unreasonable

interpretation and application of the home statute. I am satisfied that the Commissioner’s decision does not fall within the scope of acceptable outcomes which are defensible in respect of the facts and the law. The evidence, particularly the boxes on the first page of the documents, illustrates that the documents are the property of IOL and the Commissioner’s decision that the information belongs to AEV is unreasonable. I agree that a mere assertion of ownership does not make it so. However, in this case, the evidence indicates that the material belongs to IOL.

AEV certainly does not claim ownership and indicates that providing direction with respect to timelines does not automatically mean that the information no longer belongs to IOL. I find that this decision was unreasonable. 3. Section 16(1)(b): Was the information supplied, explicitly or implicitly in confidence? [ 108 ] FOIP mandates that once the requirements of s 16(1)(

a) are satisfied, the inquiry proceeds to s 16(1)(b). Section 16(1)(

b) has two elements: the information must be “supplied” by IOL and it must be supplied “explicitly” or “implicitly”, in “confidence”. In para 24 of the Order, the Commissioner held that for s 16 to apply, the information would have to be “supplied” to the Public Body. [ 109 ] At para 28, the Commissioner concluded that the Agreement, including its attachments, “for the most part” was not “supplied” by IOL to the Public Body. At paras 24-27 he states: The foregoing discussion also informs the question of whether the information was “supplied to” the Public Body by the Affected Party.

For information to be so “supplied”, the third party must be the source of the information. Order 2000-005 held that, generally, information in an agreement that has been negotiated between a third party and a public body is not information that has been supplied to a public body.

There are exceptions, where information supplied to the public body prior to or during negotiations is contained in the agreement in a relatively unchanged state, or is immutable, or where disclosure of information in an agreement would permit an applicant to make an accurate inference about information supplied to the public body during the negotiations. Position of the Parties [ 110 ] IOL submitted that the Commissioner purported to create two exceptions to the general rule. Yet, there is no language in FOIP to support this

interpretation. IOL submitted that the Commissioner took it upon himself to act as legislator in adding words. [ 111 ] AEV submitted that if the Commissioner’s

interpretation was applied it would result in the consequence that a great deal of

information submitted to AEV by third parties would not fall within “of a third party” for the purposes of s 16 for the sole reason that AEV provided direction to ensure that the appropriate information was submitted in a timely way.

This finding appears to include information submitted pursuant to direction in regulations or guidelines, or other documents enacted or developed with the involvement of AEV. [ 112 ] Counsel for the Commissioner argued that in making his finding, the Commissioner gave meaning to the specific wording of FOIP , the principle of public interest underlying the Act and the specific provision and the facts before him. The Commissioner submitted that the finding is reasonable. [ 113 ] According to counsel for the Commissioner, the Agreement is a communication arising from the mediation.

As such, the Agreement is not information supplied by IOL to AEV. AEV’s role in developing the information precludes it from having been supplied to AEV as s. 16(1)(

b) requires. The Commissioner is clear that where, as here, with the commercial, financial, technical and scientific information, the public is involved in developing the information, the information is not “supplied” by the third party to the public body, s. 16(1)(

b) is not satisfied and the exemption to disclosure does not apply. [ 114 ] Counsel for the Commissioner submitted that the Commissioner came to a reasonable conclusion on a question of mixed fact and law to find that the commercial or financial information was not supplied by IOL to AEV: information that resulted from negotiations between a third party and a public body has not been “supplied” to the public body. [ 115 ] The City submitted that the Commissioner found as a fact that the information was not supplied by IOL to the Public Body and this finding of fact should not be disturbed by this Court. Analysis [ 116 ] The standard of review is reasonableness. [ 117 ] Section 16 (1)(

b) requires that the information be “supplied” by the third party to the public body. It does not function to protect government actions from disclosure. It is specifically formulated to protect confidential non-governmental information from disclosure. The Commissioner is clear that s 16 must balance third party confidence with transparency in the government, hence the requirement that only information that is supplied by a third party is barred from disclosure.

The Commissioner has determined that where as here the public body is involved in developing the information, the information is not “supplied” by the third party to the public body. According to the Commissioner the public body’s role in developing the information precludes it from having been “supplied” by AEV. [ 118 ] The information in this case, was supplied to the public body by a third party. The fact that the Agreement was negotiated should not be a reason to exempt it from s 16(1)(b).

I agree with IOL that the scheme of the Act contemplates the interests of a third party who may be adversely affected by the disclosure are to be taken into account. The Commissioner’s decision on this point was unreasonable; no line of reasoning is provided to support this conclusion. Was the information confidential? [ 119 ] The second step in this inquiry is to determine whether the information was confidential. This step is reached only if the previous requirements of s 16(1)(

a) are satisfied and if it is found that the third party “supplied” the information to the public body. The Commissioner found that none of these requirements were met so the exception to disclosure did not apply and no further inquiry was necessary. Nonetheless, in the event that all of his findings were later found to be unreasonable the Commissioner proceeded to determine whether IOL provided the information to AEV in confidence as required by s 16(1)(b). [ 120 ] First, the Commissioner reviewed the Agreement between the parties vis-a-vis the confidentiality of the Agreement. The Commissioner concluded as follows at paras 12-14:

In view of the parts of the Agreement just referred to (and discussed in the Addendum), I do not accept the contention of the Public Body and the Affected Party that they contracted to keep the Agreement itself confidential. I find, rather, that only the communications made, during the mediation, in order to achieve the Agreement were clearly intended to be confidential, in the various ways the Agreement specifies. With respect to whether the Agreement itself was intended to be kept confidential and not disclosable, I find the Agreement is inconclusive as to the parties’ intentions.

Accordingly, I cannot find that they contracted to make it confidential. Because the language of the Agreement itself is equivocal, I am perplexed that the Public Body and the Affected Party contend in their submissions, in no uncertain terms, that the terms of the Agreement prevent its disclosure. I am the more perplexed about these claims when I consider that there is a regulatory process in the legislation, that was not followed in this case, which reflects a public policy of openness relating to the remediation of contaminated land.

The Environmental Protection and Enhancement Act and associated regulations permit a mediated resolution of an appeal of an EPO. However, resolutions are to become the subject of a Board Report, and ultimately a decision by the Minister. EPOs, Board Reports under section 12(1) of the Environmental Appeal Board Regulation, and Minister’s orders under section 100(1) of the EPEA, are all available to the public. In this case, there was a resolution but no Board Report or subsequent Minister’s order.

Rather, the parties entered into a binding agreement, based on the mediated resolution, that resulted in cancellation of the EPOs and withdrawal of the appeals. [ 121 ] The Commissioner determined that the regulatory process reflects a public policy of openness relating to the remediation of contaminated land at para 15: It seems a surprising proposition that by not following the usual processes, and instead entering into an agreement the EPEA does not contemplate in the context of an appeal, the parties can keep confidential the document that takes the place of publicly-available instruments.

The environmental legislation mentioned above clearly reflects a policy that the public should know about the mediated resolutions of regulatory problems. The same public policy for openness applies, in my view, to the terms of the cancellation of an EPO [which in this case are contained in the Agreement].

As noted in the Addendum the equivocations in the Agreement may reflect the signing parties’ own recognition of this public policy. [ 122 ] The Commissioner further held that the EAB’s submissions as Intervener strengthened his conclusions at para 16: I am further strengthened in my conclusion on this point by the submissions of the Intervener, the EAB. In these submissions, the EAB sets out its policy with respect to confidentiality or otherwise of decisions made in the regulatory appeal process.

With reference to the Board’s “template agreement to mediate”, the submission says the following: In the Board’s view, it is good practice and permissible to allow the parties to modify the standard template [which provides for publication of regulatory decisions] within certain bounds, and at all times it is necessary to do so to get the parties to agree to mediate at all. The limits of this as regards confidentiality are that any change to the regulatory decision [in this case, the EPOs that were under appeal] must obviously remain public and is not only producing under the Privacy legislation it is public.

However, to the extent the parties choose to mediate other, albeit collateral issues, they are free to do so and indeed encouraged to do so if, as a result, the regulatory action under appeal may be resolved. The latter reference is to clauses that are “solely between the Participants and do not become part of the regulatory document” and that cannot be enforced by the EAB or Alberta Environment (though they may be enforced through court action or private mediation).

Position of the Parties [ 123 ] IOL submitted that Articles 15.1 and 15. 2 of the Agreement provided that the “..Agreement...shall remain privileged and confidential and shall not be offered or received into evidence in any proceeding ...”. [ 124 ] The Commissioner’s analysis of this clause is found at para 10 of his Confidential Addendum:

The final clause which is significant is clause 15. This says the Agreement shall remain privileged and confidential and is not to be offered or received into evidence in any proceedings other than as necessary for the enforcement of the Agreement. Only a small part of this assertion is effective. The parties can agree between themselves, and have done so, that they will not offer the Agreement into evidence in any proceeding other than one to enforce the Agreement.

This part of the clause is binding on the parties, and if any of them were to offer the Agreement in evidence, they would be in breach of this part of the contract. However, the remaining parts of the assertion are, in my view, beyond what the parties can control by agreement. Whether the Agreement is privileged in the sense of being receivable or otherwise in a legal proceeding is a matter for the court before which a legal proceeding is being brought to decide based on whether it meets the common law criteria for privilege or inadmissibility, or is privileged by virtue of statute.

The fact the parties have said, in a particular document that it is inadmissible in a court proceeding or “privileged”, does not necessarily make it so. Therefore, I take nothing from this part of the clause that could help me decide the factual question before me. With respect to the fact that this clause describes the Agreement as “confidential” , the use of the word “confidential” in clause 15 can be interpreted as confined to the discussion of admissibility in court and the agreement not to offer the document as evidence. [ 125 ] IOL submitted that

Article 15 clearly states that the Agreement shall remain privileged and confidential. The words are clear, unequivocal and “are to be given their plain, literal and ordinary meaning”. IOL submitted that the Commissioner’s suggested

interpretation, confining the confidentiality obligation to admissibility in Court proceedings flies in the face of the plain, literal and ordinary meaning of the words used. [ 126 ] The EAB spent a great deal of time discussing this issue in its brief. In the EAB’s submission, the Commissioner’s conclusion on confidentiality is not a finding of fact. No party to the mediation process before the EAB now appears to assert that what they agreed to, including the “end product” was anything but confidential in the manner they thought they had agreed to, including the end product.

The EAB submitted that it did not do or say anything to lead the parties to believe the Agreement was anything but confidential. The EAB stated at para 27 of its Brief: The significance of this for the EAB’s processes generally is that, in future, if parties consider mediation, they must do so expecting, despite their common consent, that the agreement they make will be found to be subject to public disclosure.

This will inevitably influence the willingness of parties to engage in such mediation, or will limit the scope of what they many be willing to produce or agree to. [ 127 ] According to the EAB, the Commissioner’s conclusion that the end product of mediation was not confidential appears to be based on two propositions: First, that the document is inconclusive as to the parties’ intention. Second, that section 12 (1) of the Environmental Appeals Board Regulation requires the agreement to be reduced to a public Ministerial Order. [ 128 ] The EAB’s concern is that the Commissioner’s

interpretation of s 12 of the EAB Regulation conflicts with the EAB’s longstanding approach which would ultimately disappoint participating parties’ legitimate expectations to the detriment of the reputation and credibility of the EAB’s mediation processes. [ 129 ] According to the EAB, s 12(1) deals with a resolution of a notice of appeal that requires something further to be done under the appeal mechanisms in the Act. It does not, in the EAB’s view, and its

interpretation of its home statute apply, where the EPO is withdrawn or the Notice of Appeal is withdrawn. The withdrawal of a notice of appeal is different from the resolution of the notice of appeal by modifying the EPO, since the latter requires the Minister’s acceptance whereas the former does not. [ 130 ] In its brief, the EAB explains at para 35: Reading

Section 12 of the Regulation in the scheme of the Act makes it clear that the parties can resolve a matter in one of two ways the

Reading

Section 12 of the Regulation in the scheme of the Act makes it clear that the parties can resolve a matter in one of two ways the EAB might decide it (depending on either the EAB’s role as advisory under 12(1) or decisions under 12(2)). The Commissioner recited the Board’s point on this at paragraph 63 of the decision. However, the decision goes on to say ‘it is not clear why the steps under

section 12 of the Regulation which are mandatory . . . were not followed.” In answer to the Environmental Appeals Board’s

interpretation, he merely says “ a cancellation is the most extreme form of modification.” The Commissioner fails to acknowledge a distinction between what the Act allows the parties to do, or agree to, unilaterally i.e. withdraw, and what requires Board or Ministerial approval which is any modification of the EPO, whether by agreement or regulatory process.

By way of analogy, it is the difference between the parties settling a lawsuit and withdrawing it entirely, and settling a case by agreeing on a consent order subject to the court’s approval. [ 131 ] The EAB noted the complexity of the proceedings leading to the Agreement and that it was an “atypical” situation. The EAB explained that many agreements between AEV and a private entity usually reflect a change to be made to an approval, license or enforcement order and will typically form the basis of a report and recommendation to the Minister, which then may or may not become the basis of the ministerial order.

The contents of any ministerial order is wholly within the discretion of the Minister. AEV did not modify the appealed EPOs but cancelled them and IOL then withdrew its appeal. [ 132 ] Further, EAB submitted that the Board resolves the majority of its appeals by way of mediation. A mediation process is viable only when the parties can be assured that participation in such a process will not prejudice their interests. The EAB submitted that it is the flexibility and confidentiality of its mediation process offered to the participants that leads to its success.

It enables participants to be creative in their ideas and suggestions without fear that negotiations will be misinterpreted or scrutinized outside of the mediation context. [ 133 ] The EAB also discussed at great length the impact of disclosure in this case on the operations of the EAB. The EAB noted that this particular mediation process was markedly different from the typical mediation before the Board in its content and its process. It was a complex matter.

Before the mediation was commenced, the EAB worked with both parties to help them negotiate in good faith towards a document entitled “Agreement to Mediate” which in the end result took a much stricter approach to confidentiality than the EAB’s general “Participants’ Agreement to Mediate.” In particular, the “Mediation-related information and communication exchanged before, during and after this Mediation cannot be referred to or released in any other context including but not limited to regulatory, judicial, consensual, arbitral, binding and non-binding proceedings of any type, without the express written consent of all the Participants.” [ 134 ] The EAB noted that the above clause can be contrasted with the EAB standard “Agreement to Mediate” which refers to the confidentiality of the record of the proceedings in the following way: “Confidentiality does not apply to the documents, records, materials or other correspondence provided to the EAB with respect to the main part of the appeal even if they are used in the context of the mediation.” [ 135 ] In this case, the EAB submitted that the final Agreement that was reached did not form the basis of a report and recommendation to the Minister because the Agreement reached did not modify the EPO’s that were the basis of the appeal.

AEV did not modify the EPOs but cancelled them and IOL withdrew its appeal to the EAB. Once the appeal was withdrawn the matter was no longer within the jurisdiction of the EAB. [ 136 ] EAB submitted that the final Agreement, to the extent, that it is within the knowledge of the EAB was a confidential Agreement between AEV, the Minister of Environment, Devon Estates Ltd and IOL. In addition to this agreement, there were also a number of private agreements reached between individual residents of Lynnview Ridge, Devon and IOL.

These agreements were facilitated by the mediation process but remained wholly private agreements even though the Board aided the parties to obtain information from third parties to help the parties come to an agreement. [ 137 ] EAB argued that the parties proceeded to craft their agreement under the auspices of the EAB, working on the assumption that it was open to them, if the EPO and the Notice of Appeal were withdrawn, that their settlement would (

a) be enforceable, (

b) be confidential and (

c) would require no further process under s 12 of the Regulation. Disclosure, compromises and commitments were presumably made based on these assumptions. [ 138 ] AEV submitted that when interpreting the Agreement as a whole, the context of the parties’ intention is clear. The Remediation Agreement is confidential. [ 139 ] Counsel for the Commissioner submitted that the Commissioner clearly and reasonably found that the information in question is not IOL’s information, and second, that it was not “supplied” in “confidence”. The information fails to meet the test contained in FOIP

requiring a balancing of interests as discussed by the Supreme Court of Canada in Merk Frosst Canada Ltd. v Canada (Health), 2010 SCC 3 , [2012] SCR 23 at para 23 . [ 140 ] Counsel for the Commissioner submitted that FOIP incorporates a balancing between public interest in disclosure and potential commercial interest in confidentiality. However, the balancing required by FOIP reflects that this is not to be the only consideration.

Section 16(1)of the Act requires that the information be of the third party (corporation’s information) and that it be supplied to the public body in confidence. [ 141 ] According to Counsel for the Commissioner, the Commissioner clearly and reasonably found first, that the information in question was not IOL’s information, and second, that it was not supplied in confidence.

In this case, the information in issue fails to meet the test contained in the Act which balances the interests which the Supreme Court discusses at para. 23 of Merk Frosst. [ 142 ] The City submitted that the law does not allow parties to mark a document as confidential and then at a FOIP inquiry argue that the confidential stamp means that the document is not releasable under FOIP. The City submitted that the Commissioner’s conclusion on confidentiality is a finding of fact and it should be reviewed on a reasonableness standard.

Conclusion [ 143 ] A standard of review of reasonableness can be applied to other issues in this decision, however, in my view the standard of review of correctness applies here. The

interpretation of the EPEA, its related regulations and Ministerial Orders are outside the Commissioner’s expertise. The Commissioner has taken on the task of interpreting the EPEA and its related regulations . It is not the Commissioner’s home statute, it is environmental legislation. The Commissioner’s decision is not therefore entitled to deference on this point. [ 144 ] As in judicial dispute resolutions, the promise of confidentiality is an incentive to compromise and settle. Through his

interpretation, the Commissioner is removing the EAB’s ability to facilitate resolution between parties that results in the withdrawal of EPOs or appeals unless the agreement producing that result becomes the subject of a public decision of the EAB or a public report and recommendation to the Minister and a subsequent public Ministerial order. In the EAB’s experience this would reduce its effectiveness and increase the number of hearings. I agree. [ 145 ] In my view, the Commissioner’s decision on this point is incorrect.

In this case, the participants negotiated a rigorous confidentiality agreement in conjunction with the Agreement to mediate. The EAB also signed this Agreement at the same time as the participants. An order releasing the final Agreement that is within the boundaries of the confidentiality agreement, would harm the credibility of the mediation process employed by the EAB. The role of mediation at the EAB and other similar adjucative bodies is growing.

The EAB sees this as a positive trend and is concerned that any breach of confidentiality, even the perception of such breach could stifle any trend toward mediated agreements. I agree with this. [ 146 ] Clearly the Commissioner is not obliged to find that a document is confidential simply because the parties say it is so. In this case, however, there was no evidence provided to the contrary. The word “Confidential” was printed on the cover page of the Agreement to Mediate. Both IOL and AEV asserted that the Agreement is confidential.

Although certainly not determinative of the point, the marking of the word “Confidential” is evidence which supports the contention that the Agreement was supplied in confidence. [ 147 ] I echo the wording of the EAB in its brief at para 53, where it states that “parties must be confident that their discussions stay confidential under the umbrella of the mediation process and that they do not leak out or taint future adjudicative proceedings before the Board”. The Board resolves the “majority” of its appeals through mediation.

This process will only be viable when the parties can be assured that their interests will not be prejudiced by participating. [ 148 ] The Commissioner’s decision on this point is incorrect.

4. Does Section 16(1)(

c) apply to bar disclosure of the Agreement? [ 149 ] The Commissioner held that because the requirements of ss 16(1)(

a) and (

b) were not met, it was not necessary to consider whether s 16(1)(

c) applied to bar disclosure of the Agreement. Counsel for the Commissioner noted that because the information satisfied neither ss 16(1)(

a) or 16(1)(b), s 16(1)(

c) did not come into play. Position of the Parties [ 150 ] IOL argued that the Commissioner should have applied this

section for the following reasons: Section 16(1)(c)(i): Firstly, the disclosure could reasonably be expected to interfere significantly with the negotiating position of IOL as it relates to the City of Calgary and the remaining landowners. Section 16(1)(c)(ii): As noted above, if the Agreement is disclosed to the City of Calgary it is unlikely that the complex and difficult problems of this sort will be resolved on a consensual basis in the future.

Section 16(1)(c)(iii): the City having avoided the need to make the concessions and contributions which ordinarily accompany a mediation process, now wishes to have access to the Agreement in order to further enhance its financial and bargaining position to the detriment of AEV and IOL. [ 151 ] The City submitted that when the Commissioner was determining whether or not section 16(1)(

c) applied, he was exercising his discretion within his jurisdiction, being the enforcement and administration of FOIP. Further, he is the expert in interpreting his own statute. His findings of fact should be given deference by the Court. [ 152 ] In my view, the disclosure could reasonably be expected to interfere with the negotiating position of IOL as it relates to the remaining land owners and the City of Calgary. Further, granting acc

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