Calgary (Police Service) v Alberta (Information and Privacy Commissioner), 2014 ABQB 791

Court of Queen’s Bench of Alberta Citation: Calgary (Police Service) v Alberta (Information and Privacy Commissioner) , 2014 ABQB 791 Date: 20141223 Docket: 1301 06154 Registry: Calgary Between: The Chief of Police of the Calgary Police Service Applicant - and - Office of the Information and Privacy Commissioner, and Minister of Justice and Attorney General for the Province of Alberta Respondent _ ________________________________________ ______________ Reasons for Judgment of the Honourable Madam Justice S.L. Hunt McDonald _________________________________________ ______________ I.

Introduction [ 1 ] In Alberta, police officers routinely provide collision reports to members of the public who have been involved in traffic accidents. The collision reporting form, prescribed by law, contains personal information, including the names, addresses, birth dates and telephone numbers of the drivers involved in the accident.

A full copy of the collision report is provided to the drivers involved in an accident. [ 2 ] A member of the public filed a complaint with the Information and Privacy Commissioner [the “ Commissioner ”] against the Calgary Police Service regarding the disclosure of her personal information following a traffic accident [the “ Complaint ”]. On April 15, 2013, by Order F2013-12, an adjudicator [the “ Adjudicator ”] in the Office of the Commissioner ordered the CPS to cease disclosing

more information than was necessary for meeting its purpose under section 11(2.1) of the Traffic Safety Act , RSA 2000, c T-6 [the “ TSA ”] [the “ Adjudicator’s Decision ”]. [ 3 ] In this application, the Chief of Police of the Calgary Police Service [the “ CPS ”] seeks judicial review of the Adjudicator’s Decision regarding the disclosure of collision reports to members of the public who have been involved in traffic accidents. II.

Background [ 4 ] The facts underlying this judicial review application relate to the Complaint to the Commissioner made by an individual [the “ Complainant ”] that the CPS disclosed her personal information following a traffic accident involving an alleged road rage and hit and run incident in which the Complainant feared for her personal safety.

Before the Commissioner, the Complainant argued that CPS’s disclosure of the entirety of her personal information in the collision report to the other driver involved in the incident contravened the Freedom of Information and Protection of Privacy Act , RSA 2000 c F-25 [“ FOIP ”]. [ 5 ] The Commissioner, the Minister of Justice and Attorney General for the Province of Alberta and the Complainant were given notice of this application, pursuant to rule 3.15(3) (

b) of the Alberta Rules of Court , Alta Reg 124/2010 [the “ Rules ”]. The Minister of Justice and Attorney General did not participate in this application. The Complainant, although originally named as a respondent, also declined to participate, and upon her request and consent by the other parties, was removed as a respondent. The Commissioner made submissions and participated in the hearing. A. The Incident [ 6 ] The incident giving rise to the Complaint to the Commissioner was described in the Adjudicator’s Decision at para 1 and in the Complainant’s letter to the Commissioner.

The materials before the Adjudicator included correspondence among the Complainant, the CPS and the Commissioner, as well as the Affidavit of Constable Anthony Ahtom attaching the completed Government of Alberta Collision Report Form [the “ Collision Report ”] as an appendix. [ 7 ] From the record of proceedings, the evidence was that the incident giving rise to the Complaint was a traffic accident between two drivers. On October 20, 2011, the Complainant called the police to tell them that a driver had driven aggressively and sideswiped her car.

The Complainant also stated that when the vehicles were stopped, the driver got out of his car and banged his fists on her car window, making her afraid to get out of her own car. The Complainant stated that when the driver left the scene, she followed him so that she could provide the police with directions of his location. [ 8 ] Constable Ahtom, a member of the CPS, was dispatched to locate the vehicle involved in this alleged hit and run incident. Constable Ahtom located the vehicle at a gas station and pulled up behind it. [ 9 ] Constable Ahtom spoke with both the Complainant and the other driver.

The other driver indicated that he had tried to advise the Complainant that he was going to attend the police station and report the accident. However, the Complainant refused to speak with him. Constable Ahtom concluded that he was unable to determine which driver was at fault for the collision. There were no independent witnesses and no video footage or other additional evidence available to substantiate a hit and run charge. [ 10 ] Constable Ahtom completed the Collision Report, which indicates the incident was not a hit and run, and obtained a statement from each driver.

The Collision Report contains both drivers’ names, addresses, telephone numbers, birthdates and vehicle information. Constable Ahtom also decided that there were no concerns for the safety of the Complainant, and that there was no reason not to release her personal information by way of the Collision Report. He provided a copy to both the Complainant and the other driver. B. Proceedings Before the Commissioner [ 11 ] On December 19, 2011, the Complainant made a complaint to the Commissioner that the CPS had disclosed her personal information to the other driver in contravention of FOIP .

Initially, the Complainant’s matter was referred to mediation through the Commissioner. However, mediation was unsuccessful and a written inquiry was scheduled. [ 12 ] The Adjudicator reviewed the parties’ submissions and noted that neither party addressed section 40(4) of FOIP . As such, the Adjudicator requested the CPS to answer three questions, summarized as follows: 1. Does section 11(2.1)(a), or another provision of the Traffic Safety Act , require, or otherwise make it necessary for a police officer to provide the name, address, and telephone number of one driver to another?

Could this information have been severed from the Collision Report form? 2. Why were the Complainant’s name and contact information not severed from the Collision Report form that was provided to the other driver? Did the constable consider whether it was possible to sever this information from the Collision Report before providing this information to the other driver? 3. Does the Public Body always provide unredacted copies of the Collision Report forms to all drivers involved in accidents? Are there policies in place to assist officers to exercise discretion under section 11(2.1)(a)?

If so, what are they? [ 13 ] The CPS provided submissions in response to the Adjudicator’s questions and the Complainant provided rebuttal submissions. C. The Adjudicator’s Decision

[ 14 ] The issue for determination by the Adjudicator was whether the CPS disclosed the Complainant’s personal information in contravention of

Part 2 of FOIP . [ 15 ] The Adjudicator’s Decision was issued as Order F2013-12. The Adjudicator determined that it was unlawful for a peace officer to provide a full copy of the collision report to each of the drivers. She found that the police officer had disclosed more of the Complainant’s personal information than was necessary for meeting the CPS’s stated purpose. [ 16 ] “Personal information” is defined in

section 1 (

n) of FOIP as “recorded information about an identifiable individual”. It includes an individual’s name, address, telephone number and age: Adjudicator’s Decision, para 6. The Adjudicator concluded that the evidence of the parties established that the CPS disclosed the Complainant’s name, address, driver’s licence number, home and work telephone numbers, and date of birth to the other driver involved in the incident. The Adjudicator found that this constituted disclosure of personal information within the meaning of

section 1(

n) of FOIP : Adjudicator’s Decision, para 7. [ 17 ] The Adjudicator then assessed whether the CPS’s disclosure of the Complainant’s personal information was in accordance with or in contravention of

Part 2 of FOIP . This required a consideration of

section 40 of FOIP , which establishes that a public body may disclose personal information “for any purpose in accordance with an enactment of Alberta or Canada that authorizes or requires the disclosure”: FOIP , s 40(1)(f); Adjudicator’s Decision, para 8. [ 18 ] The Adjudicator reviewed the statutory provisions relating to the completion of a collision report, and its use and disclosure. She concluded that a collision report is a form prescribed by the Alberta Government, and that a peace officer must fill it out pursuant to

section 146 of the Operator and Licensing and Vehicle Control Regulation , Alta Reg 320/2002 [the “ Regulation ”]. The collision report requires the name, address, date of birth, gender, home phone, work phone and operator’s license number to be provided by the drivers involved in an accident. The Adjudicator also found that section 11(2.1) of the TSA authorizes peace officers to disclose information from a collision report to drivers and owners of vehicles involved in accidents, and that this kind of disclosure is authorized by section 40(1) (

f) of FOIP : Adjudicator’s Decision, para 15. She indicated that while section 11(2.1) created a discretion in a peace officer to disclose information from a collision report, it did not create a right in drivers to receive or demand the collision report or information from it: Section 11(2.1) (

a) of the Traffic Safety Act authorizes disclosing information from a collision report to a person who has paid, or may be liable to pay, or has recovered, or may be entitled to recover, damages. This description clearly encompasses the drivers of vehicles involved in the accident. I therefore find that section 11(2.1)(

a) of the Traffic Safety Act authorized the police officer to disclose the Complainant’s personal information from the collision report form to the driver of the other vehicle, and that the disclosure of this kind is authorized by section 40(1)(

f) of the FOIP Act. As I noted in my correspondence of January 10, 2013, the fact that disclosure is authorized under section 11(2.1) (

a) of the Traffic Safety Act , and section 40(1)(

f) of the FOIP Act, which are discretionary provisions, does not end the matter. Section 11(2.1)(

a) authorizes disclosing information from collision report to the drivers and owners of vehicles involved in accidents; however, it does not require disclosing the entire report to anyone. [emphasis in original] [Adjudicator’s Decision, paras 15-16] [ 19 ] However, the Adjudicator also found that although disclosure may be authorized, section 11(2.1) does not require disclosure of the entire collision report to anyone, and that the CPS had to comply with section 40(4) of FOIP when disclosing personal information: Adjudicator’s Decision, paras 16-17.

The Adjudicator found that, pursuant to section 40(4) of FOIP , “a public body must disclose only the information necessary for fulfilling its purpose in disclosing the personal information that was authorized by the enactment, in a reasonable manner”: Adjudicator’s Decision, para 17. [ 20 ] The Adjudicator further found that

section 69 of the TSA does not require a police officer to exchange the collision report with the other driver: Adjudicator’s Decision, para

Section 69 creates a duty on the parties and witnesses to an accident to exchange information, with each other or with a peace officer, on request. In the circumstances, neither party requested the information. Therefore, neither party had a duty to provide information to the other. For the purposes of

section 69 of the TSA , it was sufficient that the parties’ provided information to the police officer when he requested it. It was unnecessary for the police officer to exchange information for them: Adjudicator’s Decision, para 22. [ 21 ] The Adjudicator acknowledged that it was important to ensure that parties meet their legal obligations to each other when disclosing information from collision reports. However, she stated that it is equally important that the public body disclose only the personal information necessary for meeting this purpose.

The parties should not be exposed to harm through disclosure of personal information that is unnecessary for this purpose: Adjudicator’s Decision, para 26. [ 22 ] In her decision, the Adjudicator made the following order, at para 29: I order the public body to cease disclosing more information about the Complainant than is necessary for meeting its purposes under section 11(2.1) of the Traffic Safety Act .

This requirement can be met by developing a written procedure that requires employees of the Public Body to ensure that they are disclosing only the personal information necessary for meeting their purposes in disclosing information under section 11(2.1) of the Traffic Safety Act in a reasonable way. [ 23 ] The effect of the Adjudicator’s Decision was to require that police officers ensure that they are disclosing only the personal information necessary to satisfy the purposes of disclosure of information under section 11(2.1) of the TSA , which include monitoring drivers and the safe operation of motor vehicles.

The CPS seeks judicial review of the Adjudicator’s Decision on the basis that this effect is not reasonable, as it requires police officers to determine what minimum amount of information in a collision report is required in each individual case, and then personally editing the prescribed form so that only the minimum information is released.

III. Applicable Legislative Provisions [ 24 ] The relevant legislation for this judicial review are

section 40 of FOIP , sections 11 , 69 , 70 and 71 of the TSA , and

section 146 of the Regulation . [ 25 ]

Section 40 of FOIP outlines the situations in which a public body may disclose an individual’s personal information: Disclosure of personal information 40

(1) A public body may disclose personal information only ... (

b) if the disclosure would not be an unreasonable invasion of a third party’s personal privacy under

section 17, (

c) for the purpose for which the information was collected or complied or for a use consistent with that purpose, ... (

e) for the purpose of complying with an enactment of Alberta or Canada, (

f) for any purpose in accordance with an enactment of Alberta or Canada that authorizes or requires the disclosure, ...

(4) A public body may disclose personal information only to the extent necessary to enable the public body to carry out the purposes described in subsections (1), (2) and (3) in a reasonable manner. [ 26 ]

Section 11 of the TSA provides situations where a Registrar or a peace officer may release information contained in an accident report: Inspection of accident report 11(1) In this section, “previous legislation” means (

a) sections 83 , 84 and 85 of the Highway Traffic Act , RSA 1970 c169, and (

b) sections 77 , 78 and 79 of the Motor Vehicle Administration Act , RSA 1980 cM-22 or any one or more of those provisions that are applicable in the circumstances.

(2) Subject to the regulations, where a report is made in respect of an accident involving a motor vehicle under (

a) the previous legislation, (

b) section70 or 71 of this Act, or (

c) the regulations, a peace officer may release information contained in that report to the Registrar for the purposes of monitoring drivers and the safe operation of commercial vehicles and motor vehicles.

(2.1) The Registrar or a peace officer may release information contained in a report referred to in subsection (2) to (

a) a person or an insurance company or a lawyer, agent or representative of that person or company if the person or company (

i) has paid or may be liable to pay damages, or (ii) has recovered or may be entitled to recover damages, ... [ 27 ]

Section 69 of the TSA requires drivers to provide certain information to peace officers or witnesses upon request: Duty of driver, etc. re accident 69(1) Where an accident in which a vehicle is involved occurs on a highway, the driver or other person in charge of any vehicle that was directly or indirectly involved in the shall ... (

c) produce in writing to anyone sustaining loss or injury, to any peace officer and to any witness all or such of the following information as is requested:

(

i) that person’s name and address; (ii) the number of that person’s operator’s licence; (iii) the name and address of the registered owner of the vehicle; (iv) the licence plate number of the vehicle; (

v) a financial responsibility care issued in respect of that vehicle. [28]

Section 70 of the TSA requires peace officers to provide the Registrar with an accident report, and

section 71 of the TSArequires drivers who are involved in accidents to provide a report to a peace officer: Reports of peace officers re accidents 70 A peace officer shall, in the form and the manner prescribed by regulation, provide to the Registrar reports respecting accidentsinvolving vehicles. Reports of drivers re accidents 71(1) A driver of a vehicle involved in an accident shall, in the form and manner prescribed by regulation, provide a report of theaccident to (

a) a peace officer having jurisdiction where the accident occurred, [29]

Section 146 of the Regulation states the following: Accident report 146 A peace officer who witnesses or investigates an accident and a person who is required to provide an accident report for the purposesof

section 70 or 71 of the Act, as the case may be, in respect of an accident shall use the form provided for that purpose by the Registrar. IV. Issues [30] The issues for this judicial review are as follows: 1. Does the Commissioner have standing on this judicial review? 2. What is the appropriate standard of review of the Adjudicator’s Decision? 3. Did the Adjudicator make a reviewable error? Was the Adjudicator’s Decision reasonable and/or correct? V. Analysis and Decision A.

Standing of the Commissioner in these Judicial Review Proceedings [31] The Commissioner was not a party to the original proceedings; it performed an adjudicative function. The Adjudicator’sDecision is subject to judicial review. A preliminary issue is to determine on what basis the Commissioner has standing in this judicialreview. The Commissioner made submissions on its role in these proceedings, which were not opposed by the CPS. [32]

Part 4 of FOIP creates the Commissioner’s office and establishes the Commissioner’s responsibilities, which includemonitoring how FOIP is administered to ensure that its purposes are achieved, and performing adjudicative functions. The process andthe Commissioner’s powers with respect to reviews and complaints are set out in

Part 5 of FOIP.

Section 69 states that if a matter is notsettled by mediation, the Commissioner must conduct an inquiry and may decide all questions of fact and law arising in the course of theinquiry.

Section 72 requires the Commissioner to dispose of the issues by making an order upon completing an inquiry. Pursuant tosection 73, an order made by the Commissioner under FOIP is final. However, an application for judicial review may be made pursuantto section 74(3). [33] The Commissioner is entitled to notice of a judicial review proceeding. Pursuant to rule 3.15(3)(

a) of the Rules, an originatingapplication for judicial review must be served on the person or body in respect of whose act or omission a remedy is sought. The issueremains as to the extent to which the Commissioner may participate in this judicial review. [34] The Commissioner submits that policy reasons militate in favour of the Commissioner making submissions and explaining theprivacy scheme, given the complex and intricate nature of privacy legislation: CAIMAW Local 14 v Paccar of Canada Ltd, (SCC), [1989] 2 SCR 983 [“Paccar”] at para 39; Alberta (Information and Privacy Commissioner) v Alberta (Freedom of

Information and Protection of Privacy Act Adjudicator) , 2011 ABCA 36 at para 15 . [ 35 ] In Paccar , the Supreme Court of Canada noted that the Industrial Relations Council made submissions on the standard of review, as well as submissions that the Council had made a careful review of the authorities and had given reasoned, rational rejections to each of the arguments.

The Council did not argue before the Supreme Court of Canada that its decision was correct: para 40. [ 36 ] This Court recently considered the role of the Commissioner on judicial review in Alberta Teachers’ Association v Alberta (Information and Privacy Commissioner) , 2011 ABQB 19 [“ ATA ”], appeal struck 2014 ABCA 432 [“ ATA (Court of Appeal) ”], concluding that when the issue before the Court is in relation to the reasonableness or correctness of the underlying decision, the role of the tribunal on judicial review is limited to “clarifying the record and making submissions on jurisdictional issues and the standard of review”: ATA at para 28 .

However, a tribunal is also entitled to defend itself against allegations of “bias, fettering its discretion by failing to deal with issues, and acting in an unfair, unreasonable and abusive manner”: ATA at para 29 . Further, in ATA , this Court concluded, at para 31: ...Certainly in some cases, the Respondent to a judicial review application takes up the cause of defending the tribunal as part of its defence of the decision being reviewed.

When that is the case, there may be no need for the tribunal to participate directly on the issue, although I am doubtful that the tribunal must sit back and say or do nothing if the Respondent makes ineffective arguments, incomplete arguments, or arguments that the tribunal disagrees with.

Avoiding duplication of arguments is one thing, but arbitrarily preventing a full discussion of the issues by disallowing active participation by the tribunal is contrary to the interests of justice. [ 37 ] On that basis, this Court found that the Commissioner in the ATA case could make submissions as to the evidence on judicial review, as well as submissions on the ATA’s arguments.

The Commissioner was not permitted to make submissions as to the correctness or reasonableness of the Commissioner’s decision: ATA at para 35 . [ 38 ] The Court of Appeal of Alberta recently considered a tribunal’s standing on an application for leave to appeal in 1447743 Alberta Ltd v Calgary (City) , 2011 ABCA 84 [“ 1447743 ”]. While the Commissioner is not entitled as a right to participate as a full party in judicial review proceedings, the reviewing court has discretion to determine the scope of submissions made by the decision-maker: 1447743 at para 22.

The courts have tended to take a more lenient approach in allowing a tribunal to participate in judicial review proceedings, with the predominant concern being the integrity and impartiality of the decision-maker: 1447743 at paras 5 and 6.

The Court of Appeal held, at para 6, that: ...the scope permitted of a tribunal to participate in judicial proceedings where its decision is being challenged will largely depend on the exercise of judicial discretion by the court hearing the merits of the proceeding, and should account for the unique circumstances and overall context of that proceeding. [ 39 ] The Court of Appeal of Alberta again considered the participation of a tribunal in judicial review proceedings, as it relates to the Commissioner, in Leon’s Furniture Limited v Alberta (Information and Privacy Commissioner) , 2011 ABCA 94 [“ Leon’s Furniture ”], leave to appeal to SCC refused, 34279 (November 24, 2011).

In Leon’s Furniture , the Court of Appeal addressed whether the Commissioner had standing to make submissions on the appeal.

In that case, the appellant challenged the standing of the Commissioner, arguing that while the Commissioner was free to make submissions on issues of jurisdiction or to explain the record, it should not be able to argue the correctness of its decision: Leon’s Furniture at para 16. [ 40 ] The majority of Court of Appeal stated that it is especially important for the tribunal to remain neutral in situations where it is adjudicating over a dispute between two adversarial parties: Leon’s Furniture at para 20.

The majority also noted that not all administrative tribunals perform adjudicative functions and many receive and investigate complaints, and can generate complaints: But not all administrative tribunals perform adjudicative functions. Many of them receive and investigate complaints, and can generate complaints themselves. They often have an important policy making role, as well as an educational role within their sphere of activity. Often their adjudicative and policy making roles cannot be separated.

If their investigations reveal a breach of the regulatory regime, some tribunals essentially take over the prosecution of the complaint, and effectively have carriage of the entire proceeding. They become the investigator, prosecutor, and adjudicator. The original complainant does not and is not expected to participate, except possibly as a witness. ... : para 21. [ 41 ] The majority concluded that modern administrative tribunals have multifaceted roles which the law should acknowledge: Leon’s Furniture at para 28.

Whether a tribunal should be allowed to participate requires balancing of considerations: Leon’s Furniture at para 28. In that case, the Court of Appeal set out various non-exhaustive factors that a court may consider when deciding whether to exercise its discretion: The existence of other parties who can effectively make the necessary arguments is a central consideration... Maintaining the appearance of independence and impartiality of the tribunal is also a key consideration. The effect of tribunal participation on the overall fairness (in fact and in appearance) of the proceedings is a relevant consideration.

Of importance too is the role assigned to the tribunal under the statute. Where the statute effectively gives carriage of the proceedings to the tribunal, a greater level of participation is tolerable: B.C.T.F. v. British Columbia (Information & Privacy Commissioner) , 2005 BCSC 1562 , 50 B.C.L.R. (4th) 151 (B.C. S.C. [In Chambers]) at para. 45. The nature of the proposed arguments is important. A tribunal should not be allowed to supplement its reasons for decision, or to attempt to provide fresh justifications for the result: Bransen Construction at para. 33. While the tribunal, like any other party, can offer

interpretations of its reasons or conclusion, it cannot attempt to reconfigure those reasons, add arguments not previously given, or make submissions about matters of fact not already engaged by the record. A tribunal can, within those limits, attempt to rebut arguments about how it reasoned and what it decided: para 29. [ 42 ] The Court of Appeal concluded that the Commissioner has a variety of roles and responsibilities, ranging from adjudication of complaints to developing policy: Leon’s Furniture at para 30. The majority concluded, at para 30: The Commissioner is very close to being a true party.

It is unrealistic to think that the original complainant would have the resources or the motivation to resist the application for judicial review. If the Commissioner does not resist the judicial review application, no one

will. In the circumstances, the Commissioner should be afforded some latitude in the submissions that he can make to the court.

In this appeal neither the content of the respondent's arguments, nor their tone, exceed what is appropriate, and the Commissioner's participation, on this record, is unobjectionable. [ 43 ] Although Leon’s Furniture dealt with the Personal Information Protection Act, SA 2003, c P-6.5, I find the principles are equally applicable to FOIP . [ 44 ] In a letter dated July 18, 2014, counsel for the CPS, with the consent of counsel for the Commissioner, provided me with the recent Court of Appeal of Alberta decision in Imperial Oil Limited v Alberta (Information and Privacy Commissioner) , 2014 ABCA 231 [“ Imperial Oil ”].

Before me, both CPS and the Commissioner relied upon this Court’s decision in Imperial Oil Ltd v Calgary (City) , 2013 ABQB 393 [“ Imperial Oil (Court of Queen’s Bench) ”], albeit for different reasons. In Imperial Oil , the Alberta Court of Appeal denied the Commissioner standing to appeal a judicial review decision of a chambers judge quashing one of the Commissioner’s orders, citing Brewer v Fraser Milner Casgrain LLP , 2008 ABCA 160 [“ Brewer ”] as binding authority in Alberta.

The Commissioner had ordered the respondent Alberta Environment to disclose to the respondent City of Calgary a Remediation Agreement entered into between Imperial Oil, a Director of Environment, and others. This order was quashed on judicial review. The Commissioner sought to appeal the judicial review decision. The Commissioner’s ability to appeal from a decision on judicial review of its decision was contested.

Brewer was recently applied and Imperial Oil was cited in the ATA (Court of Appeal) decision. [ 45 ] In Imperial Oil , the Court of Appeal cited the Leon’s Furniture decision, and reviewed some of the factors to consider in determining the Commissioner’s role, specifically noting the “multifaceted role of the Commissioner in implementing [ FOIP ]” and that “[s]pecial challenges arise when there is no other party who can effectively advance the issues”: para 27.

The Court of Appeal distinguished Imperial Oil from Leon’s Furniture on the facts, concluding in para 27 that: That is not a concern here, because the City of Calgary obviously had the resources to launch an appeal if it had chosen to. Further, on this occasion the Commissioner was primarily exercising his adjudicative rule, as he had a clear dispute before him between Calgary and Imperial Oil.

Leon’s Furniture provides guidance as to the role the Commissioner might have played in any appeal brought by Calgary, but Brewer holds that the Commissioner cannot himself launch an appeal. [ 46 ] As held by the Court of Appeal in Imperial Oil , the factors described in Leon’s Furniture provide guidance on the scope of the Commissioner’s role on this judicial review. In this case, the Complainant declined to respond to the judicial review application so the Commissioner’s participation will assist in the full discussion of the issues.

Further, the nature of the Commissioner in privacy matters has been held to be “very close to being a true party”: Leon’s Furniture at para 30. The Commissioner is responsible for ensuring that FOIP ’s objectives, as set out in

section 2 , are fulfilled. These objectives include: 2. The purposes of this Act are ... (

b) 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, ... (

e) to provide for independent reviews of decisions made by public bodies under this Act and the resolution of complaints under this Act. In order to fulfill its responsibilities, the Commissioner receives and investigates complaints, has policy-making and educational roles, and performs an adjudicative function. [ 47 ] As noted above, the CPS made no submissions on the Commissioner’s standing. In the circumstances of this case, I agree with the Commissioner that she may make submissions on: 1. An explanation of the record and matters going to jurisdiction; 2.

Issues defending the reasonableness of the decision; 3. Matters that draw the attention of the Court to those considerations noted in the specialized jurisdiction and expertise of the tribunal; 4. Issues to ensure this Court can make a fully informed decision, having regard for the Commissioner’s specialized functions and the overall context of the proceedings; and 5. Issues of jurisdiction. [ 48 ] The Commissioner may not supplement the Adjudicator’s Decision or provide fresh justification for the result. B. Standard of Review [ 49 ] CPS seeks judicial review of the Adjudicator’s Decision, which involves the

interpretation of sections of FOIP relating to the disclosure of personal information, as well as sections of the TSA regarding personal information collected and disclosed following a motor vehicle accident. CPS and the Commissioner disagree as to the applicable standard of review on this judicial review. The Commissioner argues that the applicable standard of review is reasonableness, while the CPS argues that the applicable standard of review is reasonableness for the Adjudicator’s

interpretation of FOIP and correctness where the Adjudicator interprets the TSA .

[ 50 ] The method of determining the applicable standard of review on judicial review was considered in New Brunswick (Board of Management) v Dunsmuir , 2008 SCC 9 [“ Dunsmuir ”]. In Dunsmuir , the Supreme Court of Canada determined there were two possible standards of review on judicial review: reasonableness or correctness: at para 45. [ 51 ] Determining the appropriate standard of review requires a two-step approach. First, the reviewing court must determine whether the jurisprudence has already determined the degree of deference to be accorded to a particular category of question.

Second, where no precedential standard of review exists, the court must determine whether the appropriate standard is reasonableness or correctness: Dunsmuir at para 62 . This second step requires the court to engage in a contextual analysis of the following factors: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by

interpretation of enabling legislation; (3) the nature of the question at issue; and (4) the expertise of the tribunal. Not all these factors need to be considered because certain factors may be definitive: Dunsmuir at para 64 . [ 52 ] Where an administrative tribunal is interpreting its own statute or other statutes closely connected to its function, reasonableness is the presumed standard of review, and the administrative decision maker’s

interpretation is subject to deference on judicial review: Dunsmuir at para 54 ; McLean v British Columbia (Securities Commission) , 2013 SCC 67 [“ McLean ”] at para 21 , citing Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 [“ Alberta Teachers ”] at para 34 . This presumption is not carved in stone: McLean at para 22 . [ 53 ] Correctness applies to (

a) constitutional issues; (

b) questions of general law that are of essential importance to the legal system as a whole and that are outside of the adjudicator’s expertise; (

c) questions regarding jurisdictional lines between two or more competing tribunals; and (

d) true questions of jurisdiction or vires : Dunsmuir at paras 55, 58, 59 and 61 ; see also Imperial Oil at para 33 . [ 54 ] There may be different standards of review that apply to separate findings made by an arbitrator in the course of his or her decision: Lévis (City) v Fraternité des policiers de Lévis Inc , 2007 SCC 14 [“ Lévis ”] at para 19 . In Lévis , the Supreme Court of Canada noted: …Of course it may not always be easy or necessary to separate individual questions from the decision taken as a whole.

The possibility of multiple standards should not be taken as a licence to parse an administrative decision into myriad parts in order to subject it to heightened scrutiny. However, reviewing courts must be careful not to subsume distinct questions into one broad standard of review. Multiple standards of review should be adopted when there are clearly defined questions that engage different concerns under the pragmatic and functional approach: para 19. [ 55 ] Both parties to this judicial review submit that reasonableness should apply to the Adjudicator’s

interpretation of FOIP , and I agree. Reasonableness is the presumed standard where the Commissioner is interpreting or applying its home statute: McLean at paras 39-41 ; Alberta Teachers at para 34 ; see also Imperial Oil at para 33 . The Adjudicator in her decision interpreted and applied

section 40 of FOIP . Therefore, deference is required due to the Adjudicator’s familiarity and expertise with respect to privacy legislation. [ 56 ] However, the CPS and the Commissioner disagree as to the appropriate standard regarding the Adjudicator’s

interpretation of the TSA . While the CPS argues that correctness is the appropriate standard, the Commissioner submits that the proper standard should be reasonableness. [ 57 ] The CPS submits that correctness is appropriate because the TSA is not entitled to deference. The CPS argues that the TSA is not a home statute of the Adjudicator and thus is outside the Adjudicator’s expertise. The issues relating to the Adjudicator’s

interpretation of the TSA are severable and discrete and can be reviewed on a different standard than its

interpretation of FOIP . The CPS argues that the decision as it relates to the TSA involves the interrelationship among FOIP , the TSA and the Regulation, and is not limited to interpreting FOIP . The CPS submits that the Adjudicator possesses no expertise or familiarity with statutory

interpretation of traffic safety legislation or traffic safety enforcement as regulated under the TSA and the Regulation. The Adjudicator’s

interpretation of the purpose of the TSA is a question that could be addressed by both a court of first instance and the Commissioner, and is therefore subject to review on a correctness standard. [ 58 ] In support of its position, the CPS relies on the Alberta Court of Queen’s Bench decision Edmonton (City v Alberta (Information and Privacy Commissioner ) , 2011 ABQB 226 [“ Edmonton ”]. One of the issues in that case involved a question of pure statutory

interpretation of FOIP and the Municipal Government Act , RSA 2000, c M-26. Justice Moen held that the standard of review was correctness because the Municipal Government Act is not a central statute in the day-to-day workings of the Commissioner’s office, and the Commissioner was interpreting legislation other than his own and the facts were of little consequence: Edmonton at paras 26 and 27. [ 59 ] The CPS also relies on the decision in Imperial Oil (Court of Queen’s Bench), which was appealed, but the Commissioner’s appeal was quashed on the basis of lack of standing in Imperial Oil .

In Imperial Oil (Court of Queen’s Bench), Justice Stevens held that the standard of review of correctness applied to the

interpretation of the Environmental Protection and Enhancement Act , RSA 2000, c E-12 [“ EPEA ”]. Deference was not warranted because the Commissioner had no expertise to interpret the EPEA and its related regulations: Imperial Oil (Court of Queen’s Bench) at para 143. [ 60 ] The Commissioner submits that reasonableness is appropriate because

interpretation of the specific sections of the TSA relates directly to the collection, use and disclosure of personal information. Deference should be afforded where the tribunal is interpreting or applying statutes (other than the home statute) that are closely connected to its function. The Commissioner’s position is that one of the Commissioner’s functions is to review the collection, use and disclosure of personal information.

Even where the provisions being interpreted are in statutes other than the home statute, the Commissioner has familiarity with provisions that govern the collection, use and disclosure of personal information. Therefore, in these circumstances, the Commissioner is subject to deference because sections 11 , 69 , 70 and 71 of the TSA relate to the collection, use and disclosure of personal information. [ 61 ] The Commissioner further submits that the

interpretation of FOIP and the TSA are not severable and discrete. In order for the Adjudicator to complete an analysis under subsections 40(1) (

f) and 40(4) of FOIP , she was required to review the TSA to consider the CPS’s authority to disclose personal information.

[ 62 ] The Commissioner also refutes the argument raised by the CPS that the

interpretation of the purpose of the TSA could be addressed by both a court of first instance and the Commissioner.

The Commissioner submits that there is no provision in FOIP allowing the courts to interpret it at first instance; with respect to FOIP , the Commissioner has sole authority to decide all questions of fact and law, and decisions are only reviewable on judicial review. [ 63 ] Justice Hawco commented on the Commissioner’s expertise in the subject area of privacy in Stubicar v Alberta (Office of the Information and Privacy Commissioner) , 2007 ABQB 480 [“ Stubicar ”] at para 49 : …The Privacy Commissioner has developed a degree of institutional expertise and specialized knowledge in the general area of access to information and privacy legislation relative to the courts through the regular application of the [ Health Information Act ].

Therefore, curial deference is required. [ 64 ] While Stubicar addressed the

interpretation of the Health Information Act , RSA 2000, c H-5, which is one of the Commissioner’s home statutes, I find the Court’s comments on the Commissioner’s expertise to apply equally in this case, where the Commissioner considered the disclosure of personal information under FOIP . [ 65 ] It remains for me to determine whether that deference extends in this case to the Commissioner’s

interpretation of provisions of the TSA that relate to the disclosure of a collision report form. In Imperial Oil , while the Court of Appeal quashed the appeal, they commented on the applicable standard of review where a tribunal is interpreting related statutes, at para 39: The Commissioner argues that the presumptive standard of reasonableness applies not only to his

interpretation of the FOIP Act , but also to any related statutes. That may be so with respect to other statutes that deal with the disclosure of public information: Ontario (Ministry of Community Safety & Correctional Services) v. Ontario (Information & Privacy Commissioner) , 2014 SCC 31 (S.C.C.) at para. 27 . However, it does not apply to all public statutes just because a disclosure issue is raised with respect to them. 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. [ 66 ] In this case, the Commissioner did not interpret the TSA for reasons relating to traffic safety; rather, she was concerned with the narrow issue of whether the provisions of the TSA brought the disclosure of a collision report form within

section 40 of FOIP . This task was intimately related to her core functions under FOIP relating to the disclosure of personal information, and involved interpreting sections of the TSA closely connected to her functions. I do not see how the

interpretation of

section 40 of FOIP can be severed from the

interpretation of sections 11 , 69 , 70 and 71 of the TSA . I find that the reasonableness standard applies to the Adjudicator’s Decision, both in respect of FOIP and the TSA . C. Review of the Adjudicator’s Decision [ 67 ] I have found that the applicable standard of review of the Adjudicator’s Decision is reasonableness. In Dunsmuir , the Supreme Court of Canada describes reasonableness at para 47, as follows: …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. [ 68 ] The Supreme Court of Canada provides further guidance regarding the standard of reasonableness in Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 , noting that reasonableness requires deference. The reviewing court is not permitted to substitute its own decision.

Instead, it must determine whether the outcome falls within a range of possible and acceptable outcomes, of which there may be more than one: at para 59. [ 69 ] As applicant, the CPS bears the burden of proof to establish that the Adjudicator’s Decision is unreasonable: Oleynik v University of Calgary , 2012 ABQB 189 at paras 42-43 , aff’d 2013 ABCA 105 .

I must determine whether the Adjudicator’s Decision was unreasonable that the CPS must cease disclosing more information about the Complainant than is necessary for meeting its purposes under section 11(2.1) of the TSA , and that this requirement can be met by developing a written procedure that requires CPS employees to ensure they are disclosing only the personal information necessary for meeting these purposes. [ 70 ] The CPS submits that the Adjudicator’s Decision is erroneous in law and unreasonable. Its position is that the Adjudicator’s

interpretation of section 40(4) of FOIP was unreasonable, and that her

interpretation of

section 69 of the TSA was incorrect. The CPS argues that the Adjudicator made the following two fundamental errors: a. The Adjudicator denied the words “in a reasonable manner” from having any meaning in her

interpretation of subsection 40(4) of the FOIP Act , rendering her

interpretation unreasonable. b. The Adjudicator erred in her

interpretation of

section 69 of the TSA by failing to appreciate that it requires the parties to provide certain information to each other in the circumstances, so that it was necessary for the constable to assist them in satisfying that obligation. [ 71 ] In her decision, the Adjudicator concluded that section 40(4) of FOIP permits the CPS to disclose personal information only to the extent necessary to enable the CPS to carry out the purposes as set out in subsections 40(1) through (3) in a reasonable manner: para 8. Before the Adjudicator, the CPS argued that it was authorized to disclose the Collision Report to the other driver by section 40(1) (

f) of FOIP , which permits disclosure in accordance with an enactment of Alberta or Canada that authorizes or requires the disclosure. The enactment relied upon by the CPS is the TSA , and specifically, sections 11(2.1) (a), 69 , 70 and 71 , as well as

section 146 of the Regulation .

[ 72 ] These sections of the TSA and the Regulation may be summarized as follows: -Section 11(2.1)(

a) permits a peace officer to release information contained in a collision report to a person who may be liable to pay, or entitled to recover, damages. -Section 69 requires drivers to provide information to other drivers and witnesses and to police officers, on request (including the driver’s name and address, operator’s licence number, the name and address of the registered owner of the vehicle, and a financial responsibility card issued in respect of that vehicle). -Section 70 requires a peace officer to provide to the Registrar reports respecting accidents involving vehicles in the prescribed form. -Section 71 requires drivers who are involved in accidents to complete accident reports and provide them to a peace officer or an employee of a police service. -

Section 146 of the Regulation sets out the prescribed collision report form, which includes boxes to collect personal information in addition to that specified in

section 69, including date of birth, home telephone number, work telephone number, gender, vehicle VIN and licence plate number, and insurance policy information. [ 73 ] Based on these sections, the Adjudicator concluded that the Registrar is authorized to collect the information specified in the collision report form, while drivers are required to provide more limited information to each other: Adjudicator’s Decision, para 23. [ 74 ] With respect to the first fundamental error alleged by the CPS, the CPS argues that the Adjudicator’s Decision leaves an officer without discretion, as he or she must act under the TSA in a manner that will disclose the minimum information for the purpose.

Therefore, the CPS argues that is not “in a reasonable manner” as contemplated by section 40(4) of FOIP . [ 75 ] The Adjudicator determined that even if the CPS was authorized to release the information contained in the Collision Report, it did not necessarily mean that the CPS did not contravene FOIP , as the extent to which it was necessary for the CPS to disclose the Complainant’s personal information in order to comply with section 11(2.1)(

a) in a reasonable manner also had to be considered.

The Commissioner submits that, contrary to the position taken by the CPS, the Adjudicator expressly and implicitly considered whether the disclosure was made “in a reasonable manner” and concluded it was not. [ 76 ] In her decision, the Adjudicator notes that information of the kind disclosed in the Collision Report “is sensitive, as it is sufficient to create a fraudulent driver’s license or other forms of fraudulent identification.” Further, she found it could “expose the parties to other kinds of harm in some circumstances (which the Public Body’s officer found not to be present in this case)”: para 25. [ 77 ] The Adjudicator balanced these policy concerns with the purposes of the disclosure provisions in the TSA and the Regulation.

I cannot conclude that in doing so, she rendered meaningless the words “in a reasonable manner”, as argued by the CPS. I am not satisfied that the Adjudicator’s application of section 40(4) of FOIP to the facts in this case was unreasonable. [ 78 ] With respect to the second fundamental error alleged by the CPS, the CPS argues that

section 69 of the TSA requires the parties to provide certain information to each other, and that the Adjudicator erred in the circumstances by failing to appreciate that it was necessary for the constable to assist them in satisfying that obligation. There is no requirement in the TSA or Regulation that Constable Ahtom provide the parties with the Collision Report. This was discretionary.

While such disclosure may be appropriate in some circumstances, I cannot conclude that the Adjudicator’s Decision was unreasonable in interpreting the TSA and the Regulation as she did. [ 79 ] The Commissioner argues that the Adjudicator’s Decision was reasonable. I agree.

Specifically, the Adjudicator’s explanation at para 26 of the Adjudicator’s Decision sets out the rationale for her Order: While I agree that ensuring that parties meet their legal obligations to each other is an important consideration when disclosing information from collision reports, it is equally important that the Public Body disclose only the personal information necessary for meeting this purpose, so that the parties are not exposed to harm through disclosure of personal information that is not necessary for meeting this purpose.

For example, if it is unnecessary in a particular case to provide a driver’s contact information, date of birth, or driver’s license number to another driver to ensure that the driver in questions [sic] meets his or her legal obligations, then this information should not be provided for that purpose. [ 80 ] The Adjudicator’s Decision provides a reasonable justification for her order, and the reasoning is transparent and intelligible. While there may have been other ways to address privacy concerns arising out of collision reports, I am not satisfied that the Adjudicator’s Decision was unreasonable. VI.

Conclusion [ 81 ] For the reasons set out above, I am not satisfied that the Adjudicator’s Decision was unreasonable, and I dismiss the Application brought by CPS for judicial review. Specifically, I decline to make an order in the nature of certiorari quashing the Adjudicator’s Decision, or a declaration that the Adjudicator’s Decision is invalid, or in the alternative, that it is set aside.

[ 82 ] The Commissioner has been successful in its response to the application for judicial review. However, in her submissions, the Commissioner seeks no costs in her favour. Given the role of the Commissioner on this application, I agree with that position. Each party shall bear their own costs. Heard on the 25 th day of February, 2014. Dated at the City of Calgary, Alberta this 23 rd day of December, 2014. S.L. Hunt McDonald J.C.Q.B.A. Appearances: Scott H.D. Bower, Bennett Jones LLP for the Applicant, Chief of Police of the Calgary Police Service Jillian Harker, Counsel for the Respondent, Information and Privacy Commissioner