Alberta Treasury Branches v Alberta Union of Provincial Employees, 2014 ABQB 737

Court of Queen ’ s Bench of Alberta Citation: Alberta Treasury Branches v Alberta Union of Provincial Employees, 2014 ABQB 737 Date: 20141205 Docket: 1203 08936 Registry: Edmonton Between: Alberta Treasury Branches Applicant - and - Alberta Union of Provincial Employees and Office of the Information and Privacy Commissioner Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Don J.

Manderscheid _______________________________________________________ Overview [ 1 ] This is an application by Alberta Treasury Branches [ATB or Applicant] for judicial review of Order F2012-09, dated April 30, 2012 [OIPC Order], and Decision F2013-D-01, dated August 6, 2013, the Supplementary Reasons to the OIPC Order

[Supplementary Decision], issued by the Adjudicator in the Office of the Information and Privacy Commissioner [Adjudicator, OIPC or Commissioner]. [ 2 ] In the OIPC Order, the Adjudicator considered the

interpretation and application of s 4(1)(

r) of the Freedom of Information and Protection of Privacy Act, RSA 2000 c F-25 [ FOIPP Act ]. The Adjudicator held that “Alberta Treasury Branches” is a Crown corporation comprised of a board of directors, and not a “treasury branch” as defined in FOIPP Act , s 4(1)(r).

Consequently, the Adjudicator ordered the Applicant, ATB, to assist the Alberta Union of Provincial Employees [AUPE or Respondent] with the request for certain records held by ATB, as the records were not exempt from disclosure. [ 3 ] In the Supplementary Decision, the Adjudicator considered the issue relating to the application of s 36(3) of the Alberta Treasury Branches Act , SA 1997, c A-37.9, which is a transitional provision omitted, but not repealed, from the current Alberta Treasury Branches Act , RSA 2000, c A-37 [ ATBA ].

The Adjudicator concluded that ATBA , s 36(3) was a transitional provision that did not apply in respect of AUPE’s request. [ 4 ] The judicial review applications for the OIPC Order and the Supplementary Decision, filed on June 12, 2012 and September 19, 2013 respectively, were consolidated by this Court on December 18, 2013, and a Supplemental Certified Record of Proceedings was filed accordingly. Facts [ 5 ] On March 26, 2010, the AUPE requested from ATB access to records containing the following information: (

i) The number of ATB employees currently excluded from the bargaining unit represented by the AUPE who are excluded pursuant to the provisions of s 12(1)(

f) of the Public Service Employee Relations Act , RSA 2000, c P-43; (ii) The number of classifications currently excluded, the names of those classifications, and the number of ATB employees working in each of those classifications; (iii) Any ATB policies currently in effect regarding classification to the above referenced positions; and (iv) All job or classification descriptions for the above referenced positions. [ 6 ] On May 21, 2010, ATB informed AUPE that it considered the records to be subject to s 4(1)(

r) of the FOIPP Act and therefore exempt from disclosure. AUPE requested a review by the OIPC of ATB’s decision that s 4(1)(

r) applied to the records it was seeking.

The Commissioner decided to conduct a written inquiry to resolve the issue between the parties, and subsequently, initial and rebuttal submissions were exchanged by the parties for consideration by the Adjudicator. [ 7 ] Subsequently, the Adjudicator issued the OIPC Order in which she held, inter alia , that: [25] From my review of the relevant legislation, I conclude that while Alberta Treasury Branches may establish a treasury branch, it is not in itself a treasury branch, and the two terms are not synonymous. ... [43] [In] my view there are two categories of records relating to Alberta Treasury Branches to which the FOIP Act applies: those in the custody or control of Alberta Treasury Branches but not a treasury branch, and those in the custody or control of a treasury branch that document a non-arm’s length transaction as defined under the FOIP Act...

From [ATB’s submissions] I infer that it has not turned its mind to the possibility that records responsive to the access request may be subject to the FOIP Act if they are in the custody or control of Alberta Treasury Branches, but not “a treasury branch”. [44] [I] am unable to discount the possibility that records relating to employment classifications and job descriptions are in the sole custody or control of Alberta Treasury Branches, given its statutory powers and duties. [45] If there are responsive records in the custody or control of Alberta Treasury Branches, but not of “a treasury branch”, Alberta Treasury Branches has a duty to assist the [AUPE] in relation to them.

I will therefore order Alberta Treasury Branches to assist the [AUPE] by determining whether there would be responsive records in the custody or control of Alberta Treasury Branches. If there are such records, then Alberta Treasury Branches must conduct a reasonable search for these records. [ 8 ] ATB filed for judicial review of this OIPC Order, and raised the issue of the application of s 36(3) of the ATBA , being a transitional provision that ought to have been considered by the Adjudicator.

On November 21, 2012, this Court considered the ATBA , s 36(3) issue as a preliminary matter that was not argued before the Adjudicator; declined to decide the merits of the application, and with the agreement of the parties, remitted the issue to the Adjudicator for consideration at first instance. [ 9 ] Accordingly, the Adjudicator considered the issue regarding the application of ATBA , s 36(3), and in her Supplementary Decision held, inter alia , that: [19]

Section 36 appears in the ATBA under the heading “Transitional Provisions”. Transitional provisions serve to “bridge the gap” that may result from the repeal of an old legislative scheme and the introduction of a new one. ...

[23] In my view, section 36(3) is intended to encompass all references to the former branch of the Treasury Department known as Government of Alberta Treasury Branches that may occur in enactments, agreements, documents, regulations or orders, and to deem these references to be references to the new Crown Corporation established by

section 2 of the ATBA : Alberta Treasury Branches. In this way, any rights, claims, or obligations existing prior to the coming into force of the ATBA would not be lost solely because the enactment or other existing document referred to the former branch of the Treasury Department, rather than to the newly created Crown Corporation. If section 36(3) does not apply to treasury branches created under the former Treasury Branches Act [i.e.

Treasury Branches Act , RSA 1980 c T-7], then such things as mortgage agreements, for example, would be left in limbo, by virtue of the fact that a reference to a treasury branch or Government of Alberta Treasury Branches as mortgagee in the document would be a reference to an entity that ceased to exist once the Treasury Branches Act was repealed. ... [33] While I agree with Alberta Treasury Branches that section 36(3) of the ATBA is intended to establish how the terms “treasury branch”, “Treasury Branch”, Alberta treasury branch”, “Alberta Treasury Branch”, “Province of Alberta Treasury Branch” or any other designation determined by the Minister are to be interpreted when they appear in an enactment, this provision’s application is limited by the fact that the terms and designations to which it refers are terms and designations under the former Treasury Branches Act .

When it is necessary to determine how the current ATBA applies to situations arising prior to October 8, 1997, when the ATBA came into force, section 36(3) deems references to designations created under the former Treasury Branches Act , to be references [to] “Alberta Treasury Branches”. [34] As section 4(1)(

r) of the FOIP Act does not refer to designations created under the former Treasury Branches Act , I find that section 36(3) has no application to the

interpretation of section 4(1)(

r) of the FOIP Act. [ 10 ] On September 19, 2013, ATB renewed its application for the OIPC Order and also filed for a judicial review of the Supplementary Decision. As stated earlier, both judicial review applications for the OIPC Order and the Supplementary Decision have been consolidated in the within proceedings. ATB seeks a relief Order to quash or set aside Order F2012-09 and Decision F2013-D-01, being the OIPC Order and the Supplementary Decision, respectively. Issues [ 11 ] The issues to be determined in these proceedings are: (

i) What are the applicable standards of review for the issues identified below? (ii) Did the Adjudicator err in her Supplementary Decision when she held that s 36(3) of the ATBA is a transitional provision which has no application to the

interpretation of s 4(1)(

r) of the FOIPP Act ? (iii) Did the Adjudicator err in the OIPC Order when she concluded that s 4(1)(

r) of the FOIPP Act does not apply to exclude access to the records requested by AUPE? Law – relevant legislation [ 12 ] Alberta Treasury Branches Act , SA 1997, A-37.9, s 36, which reads: Transitional Provisions 36(1) Persons who are members of the board of directors under the Treasury Branches Act are continued as members of the board under this Act until their appointments expire or are terminated under this Act.

(2) The Superintendent of Treasury Branches under the Treasury Branches Act is the Chief Executive Officer under this Act and is deemed to have been appointed under

section 6.

(3) A reference in any enactment, agreement, document, regulation or order to “treasury branch”, “Treasury Branch”, “Alberta treasury branch”, “Alberta Treasury Branch”, “Province of Alberta Treasury Branch” or any other designation determined by the Minister, shall be read as a reference to “Alberta Treasury Branches”.

(4) A legal or administrative proceeding by or against Alberta Treasury Branches as it existed under the Treasury Branches Act , under any of the designations referred to in subsection (3) may be continued by or against Alberta Treasury Branches.

(5) A reference in any enactment, agreement, document, regulation or order to the Superintendent of Treasury Branches shall be read as a reference to the Chief Executive Officer.

(6) All by-laws made under

section 2.4(1) (

b) of the Treasury Branches Act are continued as by-laws under this Act.

(7) All by-laws made under

section 2.4(1) (

a) of the Treasury Branches Act are repealed.

(8) The Treasury Branches Regulation (AR 108/96) is repealed. [ 13 ] The Alberta Treasury Branches Act , RSA 2000, c A-37, ss 1(k); 2(1); and 10, which provide as follows: 1(k) “treasury branch” means a treasury branch established under

section 10, whether the branch carries on business with the public

directly or serves as an administrative or head office; ... 2(1) There is hereby established a corporation with the name “Alberta Treasury Branches”, consisting of the board of directors appointed under

section 3. ... 10 Alberta Treasury Branches may establish and operate treasury branches at any location within Alberta. [ 14 ] The

Interpretation Act , RSA 2000, c I-8, [

Interpretation Act ], s 3 and s 28(1)(ddd), which read as follows: 3

(1) This Act applies to the

interpretation of every enactment except to the extent that a contrary intention appears in this Act or the enactment.

(2) The provisions of this Act apply to the

interpretation of this Act except to the extent that a contrary intention appears in this Act.

(3) Nothing in this Act excludes the application to an enactment of a rule of construction applicable to it and not inconsistent with this Act. ... 28(1) In an enactment, ... (ddd) “treasury branch” means a treasury branch within the meaning of the Alberta Treasury Branches Act . [ 15 ] The FOIPP Act , s 4(1)(

r) which states: 4(1) This Act applies to all records in the custody or under the control of a public body, including court administration records, but does not apply to the following: ... (

r) a record in the custody or control of a treasury branch other than a record that relates to a non-arm’s length transaction between the Government of Alberta and another party. Issue (i): What are the applicable standards of review for the issues identified below? ATB’s position [ 16 ] ATB submits that the issue dealing with the application of s 36(3) of the ATBA , as a transitional provision, is subject to review on the correctness standard since the Adjudicator’s Supplementary Decision engaged the

interpretation of various sections of different statutes, namely, the FOIPP Act , the ATBA , and the

Interpretation Act . The Applicant contends that the Alberta Court of Appeal has held that where the OIPC’s

interpretation of the FOIPP Act also involves

interpretation of other pieces of legislation with which it is not intimately familiar, a deferential standard does not apply: Imperial Oil Limited v Alberta (Information and Privacy Commissioner) , 2014 ABCA 231 at para 39 , 374 DLR (4th) 489 [ Imperial Oil ]. [ 17 ] On whether the Adjudicator erred in her OIPC Order, when she concluded that s 4(1)(

r) of the FOIPP Act does not apply to exclude access to the records requested by AUPE, the Applicant acknowledges that the reasonableness standard of review generally applies to decisions where the OIPC Adjudicator is interpreting the provincial privacy legislation. However, ATB submits that in the present case, the standard of correctness should apply because a proper

interpretation of s 4 of the FOIPP Act poses a “true question of jurisdiction”: Alberta (Information and Privacy Commissioner) v Alberta (Freedom of Information and Protection of Privacy Act Adjudicator) , 2011 ABCA 36 at para 38 , 502 AR 339 [ OIPC v FOIPPA Adjudicator ]. [ 18 ] The Applicant also supports its position on the jurisdictional argument with a reference to the Office of the Information and Privacy Commissioner, Practice Note 4 (March 2, 1997), which reads that s 4 of the FOIPP Act “marks out the jurisdiction of the Act and the standard in applying that jurisdiction should be a standard of correctness.” AUPE’s position [ 19 ] The AUPE maintains that the Supreme Court of Canada has generally emphasized that a tribunal’s

interpretation 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; and that “[t]rue questions of jurisdiction are narrow and will be exceptional”: Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 at paras 34 , 39, [2011] 3 SCR 654 [ ATA ]. See also, University of Alberta v Alberta (Information and Privacy Commissioner) , 2012 ABQB 247 at paras 38 , 49, 538 AR 117.

[ 20 ] The AUPE submits that Adjudicators have relative expertise in the

interpretation of their enabling statute, as well as related legislation that they might encounter in the course of their functions: Dunsmuir v New Brunswick , 2008 SCC 9 at paras 54 , 68, [2008] 1 SCR 190 [ Dunsmuir ].

It observes that this Court has held that the fact that an Adjudicator had to consider the provisions of the School Act , RSA 2000, c S-3 and the Public Inquiries Act , RSA 2000, c P-39 – which are statutes outside the FOIPP Act – did not take “the ultimate questions” relating to the use and disclosure of private information outside of their specialized expertise: Calgary Board of Education v Alberta (Office of the Information and Privacy Commissioner) , 2014 ABQB 189 at para 35 , 96 Alta LR (5th) 380 [ CBE v OIPC ].

In that case, McDonald J comments: Both FOIP , and thereby the Commissioner, are designed to apply to other statutory regimes and public bodies that deal with private information. As provided in s. 2(b), one of the purposes of FOIP is to “to control the manner in which a public body may collect personal information from individuals, to control the use that a public body may make of that information and to control the disclosure by a public body of that information”.

It is therefore evident that, in addition to interpreting the provisions of FOIP , the Commissioner will also necessarily have to interpret the relationship between other statutes and FOIP [ Emphasis added ]. [ 21 ] The AUPE also refers to Calgary Police Service v Alberta (Information and Privacy Commissioner) , 2010 ABQB 82 at paras 61 , 72, 484 AR 347 [ CPS v OIPC ], where the Privacy Commissioner’s

interpretation involved the FOIPP Act , the Police Act , RSA 2000, c P - 17 and the Police Service Regulation , Alta Reg 356/1990 [ PSR ]. AUPE observes that McMahon J commented in the case that “[w]hile the Commissioner reviewed the provisions of the Police Act and the PSR in analysing the requirement for public scrutiny, his decision remains grounded in the four corners of the FOIP Act .” [ 22 ] AUPE draws attention to the following facts: (i) “Alberta Treasury Branches” is listed as a public body in the Freedom of Information and Protection of Privacy Regulation , Alta Reg 186/2008,

Schedule 1 [ FOIPP Regulation ]; (ii) Under ss 16-17 of the FOIPP Regulation , none of the provisions of either the ATBA or the

Interpretation Act are listed as prevailing despite the FOIPP Act ; and (iii) Neither the ATBA nor the

Interpretation Act contain an express exemption from the FOIPP Act . Accordingly, AUPE contends that the reasonableness standard of review applies to the Adjudicator’s Supplementary Decision regarding the application of the transitional provision in s 36(3) of the ATBA to the

interpretation of s 4(1)(

r) of the FOIPP Act : CBE v OIPC at paras 35-37 . [ 23 ] Regarding the Adjudicator’s conclusion in the OIPC Order, that s 4(1)(

r) of the FOIPP Act does not apply to exclude access to the records it requested from ATB, AUPE submits that the reasonableness standard of review governs. It observes that the Supreme Court of Canada in McLean v British Columbia (Securities Commission) , 2013 SCC 67 at paras 31 , 33, [2013] 3 SCR 895 [ McLean ], confirms that: The modern approach to judicial review recognizes that courts “may not be as well qualified as a given agency to provide

interpretations of that agency’s constitutive statute that make sense given the broad policy context within which that agency must work” ... [And] the resolution of unclear language in an administrative decision maker’s home statute is usually best left to the decision maker. That is so because the choice between multiple reasonable

interpretations will often involve policy considerations that we presume the legislature desired the administrative decision maker — not the courts — to make.” AUPE maintains that, in the words of Moldaver J in McLean , “[i]ndeed, the exercise of that interpretative discretion is part of an administrative decision maker’s “expertise”: ibid . OIPC’s position [ 24 ] Consistent with the limited role that impugned tribunals traditionally play in judicial review applications, OIPC restricted its oral submissions to the issue of the applicable standard of review.

The OIPC submits that the reasonableness standard applies to all of the issues raised by ATB, other than the issue of procedural fairness: OIPC Brief, at para 45 (filed November 8, 2012). It points to the Supreme Court’s decision in Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professionals , 2011 SCC 59 at paras 36 , 53, [2011] 3 SCR 616, which emphasizes that the “standard of reasonableness ... normally prevails where the tribunal’s decision raises issues of fact, discretion or policy; involves inextricably intertwined legal and factual issues; or 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”; and that “at an institutional level, adjudicators” are presumed to hold relative expertise in the

interpretation of their “home statute” and related legislation that they might frequently encounter while performing their functions. [ 25 ] Further, the OIPC notes that in Ontario (Community Safety and Correctional Services) v Ontario (Information and Privacy Commissioner) , 2014 SCC 31 at para 27 [ Community Safety ] – where the Privacy Commissioner had to interpret Christopher’s Law (Sex Offender Registry) , 2000, SO 2000, c 1, ss 10, 13, in the course of applying Ontario’s Freedom of Information and Protection of Privacy Act , RSO 1990, c F - 31, ss 14, 67 – the Supreme Court affirms the principle that the reasonableness standard of review applies where a tribunal is interpreting or applying a legislation outside of its home statute, if the operation of the external statute is closely connected to the administrative decision-maker’s function.

Analysis and conclusion on standards of review [ 26 ] Foremost, the determination of the applicable standard of review is a question of law which is preserved for the reviewing Court to perform.

That judicial role can neither be replaced by an agreement of parties to a judicial review application, nor by a statement on standard of review in the internal document of one of the parties to the application: Dr Q v College of Physicians and Surgeons of British Columbia , 2003 SCC 19 at para 21 , [2003] 1 SCR 226 [ Dr Q ]; Monsanto Canada Inc v Ontario (Superintendent of Financial Services) , 2004 SCC 54 at para 6 , [2004] 3 SCR 152 [ Monsanto ]. [ 27 ] The Supreme Court prescribes that in a judicial review application, the reviewing Court must first check to “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”; and if that inquiry proves fruitful, the reviewing Court need not conduct any further analysis to determine the proper standard of review that governs that category of question: Dunsmuir at paras 57, 62 . [ 28 ] The second issue before me in this application relates to the Adjudicator’s

interpretation of the transitional provision in s 36(3) of the ATBA , which is a statute that is external to the Adjudicator. In this respect, the Adjudicator was required to interpret this external statute in the context of its application to s 4(1)(

r) of the FOIPP Act , being the Adjudicator’s “home statute.” This was the focus of the Supplementary Decision. Consequently, the relevant inquiry at this point turns on whether the existing jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded the Adjudicator with regard to her Supplementary Decision on this particular category of question involving the

interpretation and application of a legislation outside of the Adjudicator’s home statute. [ 29 ] In my view, the Supreme Court is clear in its position that “adjudicators acting under [their enabling statute] can be presumed to hold relative expertise in the

interpretation of the legislation that gives them their mandate, as well as related legislation that they might often encounter in the course of their functions ”: Dunsmuir at para 68 .

Similarly, it is noteworthy that the Supreme Court in Community Safety at para 26 , rejected the argument that the standard of correctness should apply because the Privacy Commissioner “also interpreted Christopher’s Law , which is not her home statute.” Rather, the Supreme Court held that the reasonableness standard applies as: The Commissioner was required to interpret Christopher’s Law in the course of applying FIPPA [her “home statute”].

She had to interpret Christopher’s Law for the narrow purpose of determining whether, as set out in s 67 of FIPPA , it contained a “confidentiality provision” that “specifically provides” that it prevails over FIPPA .

This task was intimately connected to her core functions under FIPPA relating to access to information and privacy and involved interpreting provisions in Christopher’s Law “closely connected” to her functions. (para 27). [ 30 ] This Court has similarly recognized that “in addition to interpreting the provisions of FOIP , the Commissioner will also necessarily have to interpret the relationship between other statutes and FOIP ”: CBE v OIPC at para 35 .

And that notwithstanding the fact that the Commissioner reviewed the provisions of certain external statutes “in analysing the requirement for public scrutiny, his decision remains grounded in the four corners of the FOIP Act ”: CPS v OIPC at para 61. These cases all recommend the deferential review standard. [ 31 ] Further, the decision of our Court of Appeal in Imperial Oil is, in my view, distinguishable from the circumstances in the present application. ATB has referred to that case in support of its position that a deferential standard does not apply to OIPC’s decisions where the

interpretation of its home statute also involves the

interpretation of other pieces of legislation with which it is not intimately familiar. [ 32 ] I note that the Alberta Court of Appeal’s comments in Imperial Oil at paras 38 - 43 , were made in the unique context of the Privacy Commissioner’s

interpretation of the Environmental Protection and Enhancement Act , RSA 2000, c E-12, [ EPEA ], and “a topic that engages the jurisdictional boundaries” of the Alberta Environment and the Environmental Appeals Board. That kind of situation, in my opinion, would attract review on a correctness standard because it implicates “the jurisdictional lines between two or more competing specialized tribunals”: Dunsmuir at para 61 . [ 33 ] In that context, the Court of Appeal in Imperial Oil at paras 39-40 , admonishes that “a reviewing court should extend limited deference to the Commissioner’s

interpretation” of the EPEA because, The Commissioner has no expertise in the

interpretation and application of environmental statutes and policies. The tribunals and public officials responsible for those statutes are in a better position to decide how they best operate, and the extent to which disclosure of sensitive information will undermine their regulatory regime.

The Commissioner’s expertise in disclosure issues calls for deference, but only so far as the Commissioner extends deference to the expertise of the environmental administrators where their expertise is engaged .” [ Emphasis added ]. [ 34 ] It is significant, in my view, that the ATBA is not of the same nature and character as the EPEA , and there is no specialized tribunal – comparable to Alberta Environment and the Environmental Appeals Board – that is vested with the sole responsibility of administering a particular regime of policies within the ATBA .

Accordingly, there is no potential issue of overlapping “jurisdictional boundaries” between specialized tribunals in the present matter.

Consequently, the qualified deference prescribed (or suggested) in Imperial Oil is neither relevant nor applicable to the within application. [ 35 ] I am satisfied that the existing jurisprudence has satisfactorily determined that the reasonableness standard applies to the category of question in respect of the second issue in the present application – where the Adjudicator interpreted the ATBA for the narrow purpose of determining a matter of access to information and privacy under s 4(1)(

r) of FOIPP Act . This interpretive task was inseparably connected to the Adjudicator’s core functions under FOIPP Act , and necessarily involved interpreting the relevant provisions of the ATBA , as a statute “closely connected” to her functions: Community Safety at para 27 . In other words, the Adjudicator had to interpret the ATBA (an external statute) in the course of applying FOIPP Act (the home statute). [ 36 ] In the end result, I conclude that for the second issue, dealing with the

interpretation of s 36(3) of the ATBA and its application to s 4(1)(

r) of the FOIPP Act , the reasonableness standard of review applies. [ 37 ] In relation to the third issue – i.e. application of s 4(1)(

r) of the FOIPP Act and access to the records requested by AUPE – my first observation is that the statement in the OIPC’s Practice Note regarding the standard of review applicable to s 4 of FOIPP Act , is not (and cannot be) determinative of the appropriate standard of review in the present matter: Dr Q at para 21 ; Monsanto at para 6 . In addition, being a 1997 document, the Practice Note does not reflect the contemporary jurisprudence of the Supreme Court of Canada on standards of review, which experienced a major transformation in the year 2008 with the Court’s decision in Dunsmuir . [ 38 ] Given contemporary jurisprudence on the

interpretation of the FOIPP Act , s 4, ATB’s reliance on our Court of Appeal’s

decision in OIPC v FOIPPA Adjudicator at para 38, to suggest that the reasonableness standard should not apply to the third issue is, inmy view, unsustainable. In that case, Ritter JA commented that “the reviewing judge relied on Dunsmuir to select the correctnessstandard of review regarding ss 77 and 4(1)(

d) of FOIPP Act. [And] conclude[d] that the reviewing judge was correct in making hisselection with respect to the jurisdictional issues.” The major problem with the statement of Ritter JA in OIPC v FOIPPA Adjudicator –a decision filed on February 3, 2011 – is that it was made prior to the Supreme Court of Canada’s decision in ATA, which was issuedsubsequently on December 14, 2011. [39] This same argument now advanced by ATB, based on the Alberta Court of Appeal’s characterization of s 4 of the FOIPP Actas “jurisdictional,” was confronted in University of Alberta v Alberta (Information and Privacy Commissioner), 2012 ABQB 247 atparas 33-38, 49, 538 AR 117; and this Court concluded that the Supreme Court decision in ATA constitutes the binding authority to theeffect that the category of true questions of jurisdiction is very narrow.

In my opinion, construing the Adjudicator’s

interpretation ofFOIPP Act, s 4 as a “true question of jurisdiction” in the present application will completely ignore the Supreme Court of Canada’scaution to “interpret this category of questions narrowly when a tribunal is interpreting its home statute or statutes closely connected toits function”: Canadian Artists’ Representation v National Gallery of Canada, 2014 SCC 42 at para 13, 458 NR 233; ATA at paras 33-34; citing, Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corp, (SCC), [1979] 2 SCR 227. [40] Accordingly, in regard to the

interpretation of s 4 of FOIPP Act vis-à-vis access to the records requested by the RespondentAUPE, I am satisfied that the Adjudicator was interpreting her home statute, and that interpretive function “should be presumed to be aquestion of statutory

interpretation subject to deference on judicial review”: ATA at para 34. ATB has not demonstrated to this Court thatthe present situation is exceptional, in rebuttal of that presumption. The reasonableness standard therefore governs the third issue, asidentified above in this application. Issue (ii): Is s 36(3) of the ATBA a transitional provision which has no application to the

interpretation of s 4(1)(

r) of the FOIPP Act? ATB’s position [41] The Applicant submits that the Adjudicator erred in her

interpretation and application of s 36(3) of the Alberta TreasuryBranches Act, SA 1997, c A-37.9. ATB argues that although s 36(3) has been omitted – but not repealed – from the current version ofthe statute (the ATBA, RSA 2000, c F-25), it remains in force.

It contends that omitted provisions that survive statutory revisions shouldnot be applied in a restrictive manner or presumed to have lesser effect following general revisions; and that these types of “enactmentscontinue as part of the law even though they are not found in the revised statutes”: Ruth Sullivan, Sullivan on the Construction ofStatutes, 5th ed, (Markham, ON: Lexis Nexis, 2008) at 654, fn 60.

ATB submits that, based on the Statute Revision Act, RSA 2000, c S-19, s 3, the legislature’s intention in omitting and not repealing the provision of s 36(3) from the current version of the statute is to give itan “immediate and continued prospective effect.” [42] Given the wordings of s 36(3) as a transitional provision, ATB maintains that its scope cannot be limited as it applies to “anyenactment” and contains no term placing restrictions on its temporal application: Medovarski v Canada (Minister of Citizenship andImmigration), 2005 SCC 51 at paras 14-17, [2005] 2 SCR 539 [Medovarski]. [43] ATB notes that s 28(1)(ddd) of the

Interpretation Act provides that the term “treasury branch” means a treasury branch withinthe meaning of the Alberta Treasury Branches Act.” And in turn, s 36(3) of the ATBA states that “[a] reference in any enactment,agreement, document, regulation or order to “treasury branch”, “Treasury Branch”, “Alberta treasury branch”, “Alberta TreasuryBranch”, “Province of Alberta Treasury Branch” or any other designation determined by the Minister, shall be read as a reference to“Alberta Treasury Branches.” [44] Accordingly, ATB argues that a plain language application of s 36(3) of the ATBA to s 4(1)(

r) of the FOIPP Act wouldrequire that the term “treasury branch” be construed as a reference to “Alberta Treasury Branches.” The effect of this plain

interpretation,ATB submits, is that all records in the custody of Alberta Treasury Branches are excluded from the purview of the FOIPP Act, subject tothe narrow exception of a “record that relates to a non-arm’s length transaction between the Government of Alberta and another party.” [45] ATB says that although “Alberta Treasury Branches” is not a “treasury branch” within the meaning ascribed to that term bythe ATBA, “and conversely a “treasury branch”, though not ATB within the meaning ascribed to that term by the ATB Act, [they] arenonetheless intended by the Legislature to experience the same legal effect for the purposes of interpreting and applying s 4(1)(

r) of theFOIPP Act”: ATB’s Written Brief, at para 63 (filed August 29, 2014). AUPE’s position [46] AUPE submits that the Adjudicator’s conclusion in her Supplementary Decision on the

interpretation and application of s36(3) of the ATBA is reasonable. AUPE notes that the Adjudicator found that s 36(3) is a transitional provision “intended to encompassall references to the former branch of the Treasury Department known as Government of Alberta Treasury Branches that may occur inenactments, agreements, documents, regulations or orders, and to deem these references to be references to [Alberta Treasury Branches]the new Crown Corporation established by s 2 of the ATBA”: Supplementary Decision, para 23 [emphasis added]. [47] Following a review of the law, the Adjudicator concluded that (paras 20-21): (

i) Transitional provisions are enacted to catchthose who fall between the cracks created by two pieces of legislation. They ensure that these individuals are not left in legal limbo,uncertain of their rights and with no applicable law: Medovarski at para 17; and (ii) The purpose of transitional provisions in general is toprovide when a new Act applies and when it does not apply, or to provide for how it applies to situations that arose before the cominginto force of the Act that are affected by its passage: York Condominium Corporation No 382 v Jay-M Holdings Limited, 2007 ONCA

49 at para 32 , 84 OR (3d) 414 [ York Condominium ]. [ 48 ] AUPE notes that the Adjudicator reasoned that s 36(4) clarifies that s 36(3) refers to designations created under the former Treasury Branches Act . S 36(4) reads: “A legal or administrative proceeding by or against Alberta Treasury Branches as it existed under the Treasury Branches Act , under any of the designations referred to in ss (3) may be continued by or against Alberta Treasury Branches”[ emphasis added ].

This provision, according to AUPE, ensures that actions instituted by or against the former branch of the Government of Alberta known as Alberta Treasury Branches, prior to the coming into force of the new ATBA , may be continued by or against the new Crown Corporation created by s 2 of the current (or new) ATBA . In support of this view, the Adjudicator referred to Alberta Treasury Branches v Ghermezian , 1999 ABQB 669 , 249 AR 240, aff’d in 2000 ABCA 228 , where both the Alberta Court of Queen’s Bench and the Alberta Court of Appeal “interpreted

section 36, when viewed as part of the ATBA as a whole, to be a transitional provision intended to establish how actions begun under the repealed Treasury Branches Act are to continue following the enactment of the ATBA.”: Supplementary Decision, para 26. [ 49 ] Further, AUPE contends that the Adjudicator was reasonable in concluding that the transitional provision in s 36(3) refers to a “treasury branch” created under s 2 of the former Treasury Branches Act , while s 28(1)(ddd) of the

Interpretation Act explicitly refers to a treasury branch created under the new ATBA . The Respondent argues that this

interpretation is logical and consistent with the legislature’s enactment of these two provisions on the same day. The AUPE submits that “once section 28(1)(ddd) of the

Interpretation Act [was] enacted as an amendment consequential to the coming into force of the [new] ATBA ,” the application of s 36(3) is limited by the fact that the designations referenced by it are “designations under the former Treasury Branches Act .” Analysis on Issue (ii) [ 50 ] Apparently, ATB no longer seeks to pursue the issue of procedural fairness as a ground of judicial review, following the consolidation of its 2012 and 2013 judicial review applications. I come to this conclusion based on the Applicant’s written and oral submissions which are focused on the “overall issue” of “whether the Adjudicator erred in concluding that s 4(1)(

r) does not apply to exclude access to the records requested by the AUPE”: ATB’s Written Brief, at para 24 (filed August 29, 2014); Transcript of Proceedings, 30/40-41 – 31/1-5 (September 19, 2014). [ 51 ] On the issue of transitional provisions, it is significant to note that Professor Ruth Sullivan, in her leading text, Sullivan on the Construction of Statutes , 5th ed (Markham, Ont: LexisNexis, 2008) at 666 [ Sullivan , Construction of Statutes ], observes that: The law governing the temporal application of legislation is notoriously difficult. There are several reasons for this.

The problems addressed by transitional law are inherently complex, and the general rule devised by courts and legislatures to deal with these problems are often inadequate. There is a vast case law dealing with the temporal application of legislation and no shortage of academic commentary. Unfortunately, this body of material is confusing and often inconsistent. The fact is transitional law lacks a coherent, well- established framework for analysis. It also lacks a clear and consistent terminology. [ 52 ] Against the backdrop of this difficult

interpretation task, the Adjudicator in the written reasons for her Supplementary Decision, gave the following analysis in support of her conclusion: [30] ...[I]t would be illogical for the legislature to enact both section 36(3) of the ATBA and section 28(1) (ddd) of the

Interpretation Act on the same day if its purpose in enacting section 36(3) was in part to ensure that section 28(1) (ddd) of the

Interpretation Act had no application. Section 28(1) (ddd) would be gratuitous and in conflict with section 36(3) of the ATBA , if section 36(3) were intended to address how the phrase “a treasury branch”, where it refers to a treasury branch created under

section 10 of the ATBA , is to be interpreted. [31] If section 28(1) (ddd) of the

Interpretation Act and section 36(3) of the ATBA both provide rules regarding the

interpretation of the word “treasury branch” whenever it appears in an enactment of Alberta, then it would be necessary for the legislature to indicate which of these provisions takes precedence to avoid conflict. However, the legislature did not do so. In my view, this is because section 36(3) of the ATBA refers to a “treasury branch” created under

section 2 of the former Treasury Branches Act , while section 28(1) (ddd) explicitly refers to a treasury branch created under the modern ATBA . I conclude that there is no overlap between the two provisions, given that they address different entities. Section 36(3) of the ATBA refers to a treasury branch that is a branch of the Government of Alberta Treasury Department; section 28(1) (ddd) of the

Interpretation Act ensures that a reference to a “treasury branch” is a reference to a treasury branch under the current ATBA . [32] I find that section 36(3) has no application to the

interpretation of section 4(1)(

r) of the FOIP Act. I say this because section 4(1) (

r) refers to the modern scheme created by the ATBA on October 8, 1997, and not to the scheme created by the former Treasury Branches Act . That this is so is evidenced by the fact that “Alberta Treasury Branches” was added as a public body to

Schedule 1 of the Freedom of Information and Protection of Privacy Regulation (the Regulation) on September 29, 1999, when Alberta Regulation 216/99, which amended Alberta Regulation 200/1995, was filed.

Schedule 1 of the Regulation contains a list of public bodies that are designated as public bodies for the purposes of

section 1(p)(ii) of the FOIP Act. The designation of Alberta Treasury Branches, the Crown corporation, as a public body post-dates the coming into force of the ATBA . This designation after the coming into force of the ATBA indicates that the FOIP Act refers to the scheme created by the current ATBA , and not that created by the former Treasury Branches Act . Once section 28(1) (ddd) (previously section 25(1) (w)) of the

Interpretation Act was enacted as an amendment consequential to the coming into force of the ATBA , section 4(1)(

r) of the FOIP Act referred to a treasury branch as a branch of the Crown corporation, and not as a branch of the Treasury Department. [ 53 ] It seems to me that the Adjudicator did not deny the general relevance and operational effects of s 36(3) as a transitional provision. My review of the Adjudicator’s Supplementary Decision reveals that she comprehensively addressed the issues around transitional provisions and in particular, s 36(3), as demonstrated in the above excerpted paragraphs of her written reasons.

[ 54 ] The Adjudicator also made references to extant jurisprudence on the matter, offered explanations, reasons and grounds on which she based her differences or disagreement with previous rulings that touch on the matter of

interpretation and application of s 36(3): Supplementary Decision, para 8, citing, her previous OIPC Order, paras 32-33. For instance, in a transparent manner, she proceeded to justify her disagreement with the former Commissioner’s Order 99-033, which in her reasoned opinion: “... does not attribute to the phrase “a treasury branch” the definition imposed by section 28(1)(ddd) of the

Interpretation Act , which would apply to the phrase “a treasury branch” in section 4(1)(

r) of the FOIP Act ... [and] does not acknowledge that there is a distinction between Alberta Treasury Branches consisting of, and operating through, its board of directors, and a treasury branch operating on behalf of Alberta Treasury Branches through its employees.” [ 55 ] Further, the Adjudicator demonstrated substantive sensitivity to the distinction between the modern scheme created by the current ATBA , and the old scheme under the former Treasury Branches Act in the context of the application of the transitional provision of s 36(3). And in interpreting a statute encountered in the course of performing her functions, the Adjudicator applied the amended provision of the

Interpretation Act , s 28(1)(ddd) – previously s 25(1)(w) – which was enacted as an amendment consequential to the coming into force of the current ATBA . [ 56 ] In my view, where there are two periods of time – the former/old legislative regime and the new legislative regime – the proper function of a transitional provision embedded in the new or current legislation would be to bridge any legal gap between these two periods. See, Medovarski at para 17 ; York Condominium at para 32 .

While a transitional provision continues to be in force ( post - transition period), i.e. has not been repealed, that transitional provision should not be read or interpreted in a manner that would subvert the clarity of the current/new legislative regime.

Where the transitional provision would conflict with the clear provisions of the new statute or befuddle the statutory construction of the new legislative regime, it is both pragmatic and reasonable to limit the transitional provision’s scope of operation, especially where the language permits and the legislature has intentionally omitted, but not repealed, the transitional provision from the new or revised statute. This approach inclusively facilitates coherence and resolves the problems that surround temporal application of legislation and the

interpretation of transitional provisions which, in the words of Professor Sullivan, are “notoriously difficult” and “inherently complex”: Sullivan , Construction of Statutes at 666. [ 57 ] In an intelligible manner, the Adjudicator reasoned that the legislature did not intend any conflict between s 36(3) and s 28(1) (ddd) of the

Interpretation Act ; and concluded that there is no overlap between the two provisions, given that s 36(3) of the ATBA refers to a “treasury branch” that is a branch of the Government of Alberta Treasury Department under the old regime (i.e. former Treasury Branches Act ), while s 28(1) (ddd) of the

Interpretation Act ensures that a reference to a “treasury branch” is a reference to a treasury branch under the current (or “modern”) ATBA . This

interpretation by the Adjudicator, in my opinion, is in alignment with the principle of statutory

interpretation which requires coherent

interpretation of statutes in pari materia : Euro-Excellence Inc v Kraft Canada Inc , 2007 SCC 37 at para 83 , [2007] 3 SCR 20, citing, P.-A. Côté, The

Interpretation of Legislation In Canada , 3rd ed (Toronto, ON: Carswell, 2000) at 342 ff. [ 58 ] In other words, while the ATBA “ought not only to be interpreted with an eye to the internal coherence of its own scheme; it must also not be interpreted in a fashion which is inconsistent” with the

Interpretation Act . The legislature could not have intended one meaning for a defined term under the “Definitions”

section of the ATBA , and a separate meaning for the same defined term under the “Transitional Provisions”

section in the same statute. [ 59 ] Accordingly, I am satisfied that the Adjudicator’s

interpretation is reasonable when she concluded that: (

i) while the transitional provision of “section 36(3) of the ATBA is intended to establish how the terms “treasury branch”, “Treasury Branch”, Alberta treasury branch”, “Alberta Treasury Branch”, “Province of Alberta Treasury Branch” or any other designation determined by the Minister are to be interpreted when they appear in an enactment, this [transitional] provision’s application is limited by the fact that the terms and designations to which it refers are terms and designations under the former Treasury Branches Act ”: Supplementary Decision, para 33 [ emphasis added ]; and (ii) section 36(3) has no application to the

interpretation of section 4(1)(

r) of the FOIP Act because section 4(1)(

r) refers to the modern scheme created by the ATBA on October 8, 1997, and not to the scheme created by the former Treasury Branches Act . [ 60 ] For the above reasons, the Adjudicator’s Supplementary Decision meets the reasonableness standard and should not be disturbed. Issue (iii): Did the Adjudicator err in the OIPC Order when she concluded that s 4(1)(

r) of the FOIPP Act does not apply to exclude access to the records requested by AUPE? ATB’s position [ 61 ] ATB submits that the Adjudicator erred when she concluded, while interpreting s 4(1)(

r) of the FOIPP Act , that there might be records in the custody or control of ATB that are not also in the custody or control of a “treasury branch.” That

interpretation, the Applicant argues, failed to broadly and plainly construe the term “treasury branch” in s 1(

k) of the ATBA to include all branches and offices of ATB, “whether they involve branches where banking transactions with the public are carried out, or whether they involve

ATB’s head office or administrative offices, where other more internal aspects of ATB’s business are carried out.” The Applicant notes that this all-encompassing approach was adopted in OIPC Order 99-033 to preclude access to all records of ATB, pursuant to s 4(1)(

m) of the FOIPP Act – the predecessor of the present s 4(1)(

r) with identical provisions. [ 62 ] In Order 99-033 at paras 88-89, the former Commissioner interpreted the same provision and held: In my view, the definition of “treasury branch” focuses on the business structure of the Alberta Treasury Branches system, rather than on a particular business location of a treasury branch (i.e., a “treasury branch facility”, as defined by

section 1 (

l) of the Alberta Treasury Branches Act ). Because the Public Body operates the entire system, I do not believe that a treasury branch can be considered to be an entity separate and distinct from the Public Body. It follows that the records produced anywhere within the Alberta Treasury Branches system cannot be considered to be within the custody or control of any particular treasury branch facility.

I conclude that a record in the custody or control of a treasury branch refers to a record located anywhere within the Alberta Treasury Branches system, including a record located at the head office of the Public Body. [ 63 ] ATB contends that the Adjudicator erred when she declined to follow this precedent which relied, in part, on the transitional provisions of s 36(3) of the ATBA , and dealt with “the exact same issue on the basis of the exact same statutory context.” ATB submits that although tribunals are not strictly bound by the principle of stare decisis , justice and the reasonableness of a decision are at stake when it departs from earlier decisions on the same issue.

In the present case, ATB maintains that it is unreasonable for the Adjudicator not to follow Order 99-033 which concluded that records in the custody or control of ATB were excluded from disclosure by s 4(1)(

r) of the FOIPP Act , “unless the exception for non-arm’s length applied.” [ 64 ] The Applicant also objects to the Adjudicator’s refusal to follow an even earlier OIPC Order 96-009, noting that the Adjudicator’s attempt at distinguishing this precedent is flawed as the actual statutory language she relied on did not support her finding: ATB’s Written Brief, at para 43.

ATB observes that the Adjudicator erroneously indicated in the OIPC Order (paras 30-31) that the Treasury Branches Act , RSA, 1980 c T-7, which was in force on February 2, 1996, defined “treasury branches” as “an ‘Alberta Treasury Branch,’ [which] included the board of directors.” ATB submits that the legislative history of that statute however demonstrates that the “board of directors” was actually created as an organ of Alberta Treasury Board in the amendment of the statute that came into force on June 12, 1996. [ 65 ] Further, ATB argues that the Adjudicator erred by failing to apply the transitional provisions of s 36(3) of the ATBA in her

interpretation of s 4(1)(

r) of FOIPP Act . The Applicant notes that while the FOIPP Act uses the term “treasury branch,” it does not define it for the purpose of that statute. Consequently, the meaning of the term flows from references to the

Interpretation Act and the ATBA : ATB’s Written Brief, at paras 47-49 (filed August 29, 2014). The Applicant notes that s 28(1)(ddd) of the

Interpretation Act , states that “treasury branch” means a treasury branch within the meaning of the ATBA . And that s 36(3) of the ATBA – which remains in force as a binding law notwithstanding its omission in the current version of the statute – provides that “[a] reference in any enactment, agreement, document, regulation or order to “treasury branch”, “Treasury Branch”, “Alberta treasury branch”, “Alberta Treasury Branch”, “Province of Alberta Treasury Branch” or any other designation determined by the Minister, shall be read as a reference to “Alberta Treasury Branches.”” [ 66 ] Accordingly, ATB argues, a plain language application of s 36(3) of the ATBA to s 4(1)(

r) of FOIPP Act mandates that the term “treasury branch” be read as reference to “Alberta Treasury Branches.” The effect of this

interpretation, the Applicant submits, is that, subject to the narrow exception – i.e. a record that relates to a non-arm’s length transaction between the Government of Alberta and another party – all records in the custody of ATB are excluded from the purview of the FOIPP Act . [ 67 ] Curiously however, ATB also argues that based on the provision of s 3 of the

Interpretation Act – which states that the statute applies “to the

interpretation of every enactment except to the extent that a contrary intention appears in this Act or the enactment” – the provision of s 36(3) of the ATBA “casts a contrary intention such that the

Interpretation Act does not apply and, instead, the term “treasury branch” is, for the purposes of s 4(1)(

r) of the FOIPP Act , ‘defined’ in the manner set forth in s 36(3)”: ATB’s Written Brief, at para 65 (filed August 29, 2014). Apparently, ATB’s basis for this argument is that the transitional provision of s 36(3) of the ATBA indicates that it also applies to “ any enactment, agreement, document, regulation or order” that refers to “treasury branch.” [ 68 ] ATB submits in conclusion that the Adjudicator erred by: (

i) limiting the scope of s 36(3) of the ATBA as a transitional provision; (ii) failing to limit the application of s 28(1)(ddd) of the

Interpretation Act , given the provision of the statute’s s 3; and (iii) failing to acknowledge that the definition of “treasury branch” in s 1 of the ATBA , applies only to the ATBA , while the definition in s 36(3) of the ATBA is to be used for other enactments such as the FOIPP Act . AUPE’s position [ 69 ] AUPE submits that the terms “treasury branch” and “Alberta Treasury Branches” are used as distinct terms throughout the ATBA .

First, in s 1(k), “treasury branch” means a treasury branch established under s 10, whether the branch carries on business with the public directly or serves as an administrative or head office.

Second, in s 2(1), “Alberta Treasury Branches” is defined as “a corporation with the name “Alberta Treasury Branches”, consisting of the board of directors appointed under s 3.” And third, it is significant that in s 10, the ATBA provides that “Alberta Treasury Branches may establish and operate treasury branches at any location within Alberta.” [ 70 ] The Respondent contends that the Adjudicator reasonably distinguished OIPC Order 99-033, when she noted that, in her view, the former Commissioner who issued it did not provide an analysis of the relevant issues around the “distinction between Alberta Treasury Branches consisting of, and operating through, its board of directors, and a treasury branch operating on behalf of Alberta Treasury Branches through its employees.” AUPE submits that, similarly, the earlier OIPC Order 96-009 was reasonably distinguished in the impugned Adjudicator’s Order when she commented that Order 96-009 neither referred to the provisions of the

Interpretation Act nor the Alberta Treasury Branches Act that were in force at the time that Order was made, and that the “the legislative scheme under review in Order 96-009 was different than the one before [her]”: see OIPC Order, para 31. The Respondent argues that, given the reality that the Adjudicator’s conclusion was based on the provisions of the current legislation, the “claim by ATB that Adjudicator Cunningham may have erred in citing the legislation she assumed the former Commissioner had considered is of no consequence.”

[ 71 ] Further, the Respondent maintains that it is neither the intention of the Legislature nor that of the transitional provision in s 36(3) to define the term “treasury branch” as meaning “Alberta Treasury Branches” in the ATBA . AUPE submits that, based on the jurisprudence from Alberta courts, the Adjudicator’s conclusion that s 36(3) of the ATBA , was intended to have temporal limitations and to pass on any rights from the former Province of Alberta Treasury Department to the new “Alberta Treasury Branches” is reasonable. [ 72 ] AUPE argues that there is no contrary intention in the ATBA that could oust the application of the

Interpretation Act . It submits that looking through the provisions of the ATBA , none of them “expressly or by implication indicates an intention to exclude or limit the definition set out in s 1(

k) from application.” And any purported “contrary intention” in the transitional provision of s 36(3) will be limited to other transitional provisions within s 36, as it cannot override the general definition in s 1 of the ATBA . The Respondent submits that it is unreasonable to suggest that the term “treasury branch” has one meaning under the ATBA and a different meaning under other enactments, as the Applicant ATB has argued. [ 73 ] AUPE notes that under the current ATBA , it is logical to assert that “Alberta Treasury Branches” and “treasury branch” are two distinct terms.

Otherwise, pursuant to the provision of s 10 of the current ATBA , “Alberta Treasury Branches” as a Crown corporation would be entitled “to establish and operate more Crown corporations at any location within Alberta. It is critical, the Respondent argues, that the Adjudicator noted in the OIPC Order that the Legislature in s 4(1)(

r) of the FOIPP Act specifically chose to refer to a “treasury branch” and not “Alberta Treasury Branches”: OIPC Order, at para 24. [ 74 ] AUPE submits that the records it has requested from ATB do not fall within the exemption specified under s 4(1)(

r) of FOIPP Act , as that provision was intended to protect records pertaining to Alberta Treasury Branches’ business as a banking institution, but was not designed to exempt corporate human resources records which AUPE seeks to obtain. [ 75 ] Finally, the Respondent indicates that: (

i) the Applicant’s suggested

interpretation would unreasonably result in two contradictory

definitions of a defined term under the ATBA ; (ii) the FOIPP Act was designed to ensure records’ disclosure, subject to limited exceptions; (iii) there is no principled basis to treat “Alberta Treasury Branches,” a Crown corporation and a designated Public Body, differently from any other Crown corporation under the FOIPP Act ; and (iv) the information requested by the AUPE, as the bargaining agent for employees of Alberta Treasury Branches, are operational records in the custody or control of “Alberta Treasury Branches” in its capacity as a public sector employee.

Analysis on Issue (iii) [ 76 ] The Supreme Court of Canada emphasized in Dunsmuir at para 47 that: 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. [ 77 ] With this prescription at the background, I conducted a review of the Adjudicator’s OIPC Order on the issue of whether or not s 4(1)(

r) of the FOIPP Act applies to exclude access to the records requested by AUPE. The review reveals that the following paragraphs of the Adjudicator’s written reasons are particularly significant for my analysis: [17] A “treasury branch” is defined in the

Interpretation Act by reference to the ATBA .

Section 1 of the ATBA states, in part: 1 In this Act, (k) “treasury branch” means a treasury branch established under

section 10 , whether the branch carries on business with the public directly or serves as an administrative or head office; [18]

Section 10 of the ATBA states: 10 Alberta Treasury Branches may establish and operate treasury branches at any location within Alberta. [19] A treasury branch, then, within the terms of section 28(1) (ddd) of the

Interpretation Act , and therefore, section 4(1)(

r) of the FOIP Act , is a treasury branch established by Alberta Treasury Branches pursuant to

section 10 of the ATBA where public or administrative business is conducted. [20]

Schedule 1 of the Freedom of Information and Protection of Privacy Regulation establishes that “Alberta Treasury Branches” is a public body within the terms of

section 1(p)(ii) of the FOIP Act . ...

[22] “Alberta Treasury Branches” is a corporation created by

section 2 of the ATBA. It is given the powers of a natural person and anagent of the Crown under the ATBA. Section 2(1) establishes that the entity known as “Alberta Treasury Branches” consists of a board... [23] Alberta Treasury Branches is not established under

section 10 of the ATBA, and is therefore not a treasury branch within the termsof

section 1 of the ATBA. For this reason, it is not a treasury branch within the terms of section 28(1)(ddd) of the

Interpretation Act, and,by reference, is not a treasury branch under section 4(1)(

r) of the FOIP Act. Alberta Treasury Branches is assigned powers under section2 and 3 of the ATBA; a treasury branch may exercise only the powers delegated to it by Alberta Treasury Branches. [24] Had the legislature intended to the FOIP Act to apply to the Public Body solely in relation to records containing information aboutnon-arm’s length transactions ... this objective could have been achieved in a manner consistent with the ATBA and the

InterpretationAct, by substituting “Alberta Treasury Branches” for “a treasury branch” in section 4(1)(r). However, the legislature did not do so. [25] From my review of the relevant legislation, I conclude that while Alberta Treasury Branches may establish a treasury branch, it isnot in itself a treasury branch, and the two terms are not synonymous. [Emphasis added]. [78] In light of the paragraphs excerpted above, I agree with AUPE that the Adjudicator was reasonable in her application of theInterpretation Act to the provisions of the ATBA in determining what constitutes a “treasury branch” under s 4(1)(

r) of the FOIPP Act. Inmy opinion, neither the provisions of the ATBA nor the

Interpretation Act demonstrate an explicit or implied intention to exclude or limitthe general definition set out in s 1(

k) of the ATBA from application to the FOIPP Act. See, Rio Algom Mines Limited v Minister ofNational Revenue, (SCC), [1970] SCR 511 at 525 where the Supreme Court of Canada commented that “contraryintention [is required] to be manifest either by explicit words or by necessary implication” in order to be effective. [79] In effect, I reject the argument of ATB that s 36(3) of the ATBA “casts a contrary intention such that the

Interpretation Actdoes not apply.” ATB’s argument cannot be sustained to the extent that it ignores the purpose and explicit provisions of ss 1, 2 and 10 ofthe ATBA, which were adequately considered by the Adjudicator in her written reasons. It seems to me that for the purpose of thisapplication, the

Interpretation Act facilitates the link between the Applicant’s reference to s 36(3), the Respondent’s reference to ss 1, 2and 10 of the ATBA, and the

interpretation of the FOIPP Act. As such, the

Interpretation Act is relevant and applicable. [80] Given the provision of ATBA, s 10 that “Alberta Treasury Branches may establish and operate treasury branches at anylocation within Alberta,” it also seems reasonable to me for the Adjudicator to distinguish between a “treasury branch” and “AlbertaTreasury Branches” in order to avoid an unintended and absurd consequence where, for instance, “Alberta Treasury Branches” as aCrown corporation and a designated Public Body would be hypothetically entitled to “establish and operate” more Crown corporationsand public bodies.

The Adjudicator’s decision effectively staved off an unreasonable situation that might potentially occur if “AlbertaTreasury Branches,” as a Crown corporation and designated Public Body, is treated or regarded as synonymous to a “treasury branch.” [81] In this context, it is critical to note that ATB, in its written Brief agrees that: (

i) a “treasury branch” and “Alberta Treasury Branches” may be distinctly defined entities; (ii) although “Alberta Treasury Branches” is not a “treasury branch” within the meaning ascribed to that term by the ATBA,“and conversely a “treasury branch”, though not [Alberta Treasury Branch] within the meaning ascribed to that term by the [ATBA],[they] are nonetheless intended by the Legislature to experience the same legal effect for the purposes of interpreting and applying s.4(1)(

r) of the FOIPP Act”: ATB’s Written Brief, at para 63 (filed August 29, 2014); and (iii) “for the purposes of allowing the enabling and incorporating aspects of the [ATBA] to function, the definitional distinctionbetween the two entities [ought] to be and can be maintained” [emphasis added]: ATB’s Written Brief, at para 65 (filed August 29,2014). I agree with the Applicant on the points listed above, which, in my opinion, are also reflective of a significant degree of operationaldistinction between the two entities. Additionally, I believe that maintaining this “definitional distinction” could be achieved withoutresort to a bifurcated or divergent statutory

interpretation model where – as proposed by ATB – the definition of “treasury branch” in s 1of the ATBA, applies only to the ATBA, while the definition in s 36(3) of the ATBA is to be used for other enactments such as the FOIPPAct. [82] In the absence of any material evidence from ATB – for instance, a reference to Journal of Debates – Alberta Hansard – insupport of its argument that the Legislature intended those two distinct terms “to experience the same legal effect for the purposes ofinterpreting and applying s 4(1)(

r) of the FOIPP Act,” I am unable to definitively accept the Applicant’s position in the face of theAdjudicator’s compelling observation that the Legislature chose to not “[substitute] “Alberta Treasury Branches” for “a treasury branch”in s 4(1)(r)”: OIPC Order, at para 24. [83] Further, while ATB properly objects to the accuracy of the legislative history referenced by the Adjudicator whendistinguishing Order 96-009, I am satisfied that she was substantively sensitive to the fact that the legislative scheme in place at the time

AUPE made its access request differs from the one in force when Order 96-009 was made. Significantly, the Adjudicator concluded,“[g]iven that the legislative scheme under review in Order 96-009 was different than the one before me, I find that Order 96-009 can bedistinguished on that basis”: Supplementary Decision, para 31. That noted difference in legislative regimes, in my opinion, constitutes areasonable basis for distinguishing the former Commissioner’s Order.

In this regard, I note that the Supreme Court of Canada exhortsthat when reviewing on the reasonableness standard, the decision of an administrative tribunal – such as the Adjudicator’s in the presentapplication – “should be approached as an organic whole, without a line-by-line treasure hunt for error”: Communications, Energy andPaperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 at para 54, [2013] 2 SCR 458, citing,Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 14, [2011] 3SCR 708.

As such, the inaccurate historical reference made by the Adjudicator should be discounted. [84] In any event, it is one of the fundamental principles of our legal system that the doctrine of stare decisis, does not apply toadministrative tribunals generally: Domtar Inc v Québec, (SCC), [1993] 2 SCR 756 at para 71, 154 NR 104 (WL); BigLoop Cattle Co Ltd v Alberta (Energy Resources Conservation Board), 2010 ABCA 328 at para 10, 490 AR 246.

Accordingly,notwithstanding the fact that the broad pursuit of consistency in decision-making is a reasonable objective for all administrative decision-makers, the Adjudicator/OIPC – as an administrative tribunal – is entitled to alter its precedents, distinguish previous decisions orcompletely depart from an earlier

interpretation, order or decision where it considers such a course of action as necessary or appropriate:see, RW Macaulay & JHL Sprague, Practice and Procedure Before Administrative Tribunals, vol 2 (Toronto, Ont: Carswell, 2004) at 6-7 – 6-11. [85] I am satisfied that, given the facts and relevant law on this particular issue, was reasonable for the Adjudicator to find andconclude that: • Alberta Treasury Branches is not established under s 10 of the ATBA, and is therefore not a treasury branch within the terms of s 1of the ATBA; • For the reason above, Alberta Treasury Branches is not a treasury branch within the terms of s 28(1)(ddd) of the

InterpretationAct, and, by reference, is not a treasury branch under s 4(1)(

r) of the FOIP Act; • Alberta Treasury Branches is assigned powers under ss 2 and 3 of the ATBA; a treasury branch may exercise only the powersdelegated to it by Alberta Treasury Branches [OIPC Order, para 23]; • Had the legislature intended the FOIP Act to apply to “Alberta Treasury Branches” – the Public Body – solely in relation torecords containing information about non-arm’s length transactions, this objective could have been achieved in a manner consistent withthe ATBA and the

Interpretation Act, by substituting “Alberta Treasury Branches” for “a treasury branch” in s 4(1)(

r) of the FOIP Act[OIPC Order, para 24]; • While Alberta Treasury Branches may establish a treasury branch, it is not in itself a treasury branch, and the two terms are notsynonymous [OIPC Order, para 25]; and • There are two categories of records relating to Alberta Treasury Branches to which the FOIP Act applies: those in the custody orcontrol of “Alberta Treasury Branches” but not a “treasury branch,” and those in the custody or control of a “treasury branch” thatdocument a non-arm’s length transaction as defined under the FOIP Act [OIPC Order, para 43]. [86] In coming to the above conclusion, I am mindful of the caution of the Supreme Court of Canada in McLean at paras 40-41that: Under reasonableness review, we defer to any reasonable

interpretation adopted by an administrative decision maker, even if otherreasonable

interpretations may exist. Because the legislature charged the administrative decision maker rather than the courts with“administer[ing] and apply[ing]” its home statute ..., it is the decision maker, first and foremost, that has the discretion to resolve astatutory uncertainty by adopting any

interpretation that the statutory language can reasonably bear. Judicial deference in such instancesis itself a principle of modern statutory

interpretation. Accordingly, the appellant’s burden here is not only to show that her competing

interpretation is reasonable, but also that theCommission’s

interpretation is unreasonable. And that she has not done. Here, the Commission, with the benefit of its expertise, chosethe

interpretation it did. And because that

interpretation has not been shown to be an unreasonable one, there is no basis for us to interfereon judicial review — even in the face of a competing reasonable

interpretation.[Emphasis in Original]. [87] Therefore, even if I accept the proposed

interpretation by ATB – i.e. the definition of “treasury branch” in s 1 of the ATBA,applies only to the ATBA, while the definition in s 36(3) of the ATBA is to be used for other enactments such as the FOIPP Act – asreasonable, I am persuaded that my decision to do so will not – and does not – diminish the reasonableness of the Adjudicator’sarticulated findings and statutory

interpretations as highlighted above, in para 84 of this Decision. In other words, the Applicant hasfailed to demonstrate in this proceeding that the Adjudicator’s statutory

interpretation is unreasonable, given her intelligible analysis ofthe relationship between the relevant provisions of the ATBA, the

Interpretation Act, and s 4(1)(

r) of the FOIPP Act. [88] Accordingly, I conclude that the Adjudicator’s written reasons in the OIPC Order, dated April 30, 2012, are justifiable,transparent and intelligible. The decision in the OIPC Order falls within a range of possible, acceptable outcomes which are defensible inrespect of the facts and law. There is no basis for interfering with the Adjudicator’s reasonable conclusion in the Order. Disposition [89] The judicial review applications by Alberta Treasury Branches, regarding Order F2012-09, dated April 30, 2012 and DecisionF2013-D-01, dated August 6, 2013, the Supplementary Reasons to the OIPC Order, as consolidated by this Court on December 18, 2013,

are dismissed. [ 90 ] The issue of costs may be spoken to within 30 days of this Decision, if the parties are unable to agree. Heard on the 19 th day of September, 2014. Dated at the City of Edmonton, Alberta this 3 rd day of December, 2014. Don J. Manderscheid J.C.Q.B.A. Appearances: Robert P. James Steven Rohatyn Parlee McLaws LLP for the Applicant Simon Renouf, QC Simon Renouf Professional Corporation for the Respondent, Alberta Union of Provincial Employees Richard B. Drewry, QC Monica Sabo Emery Jamieson LLP for the Respondent, Office of the Information and Privacy Commissioner