Jane Doe v Alberta (Deputy Minister of Executive Council), 2016 ABQB 135

Court of Queen ’ s Bench of Alberta Citation: Jane Doe v Alberta (Deputy Minister of Executive Council), 2016 ABQB 135 Date: 20160307 Docket: 1403 09170 Registry: Edmonton Between: “Jane Doe” Applicant - and - Her Majesty the Queen In Right of Alberta As Represented by the Deputy Minister of Executive Council Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ I.

Overview [ 1 ] This is an application by an Alberta Crown prosecutor for judicial review of the decisions made by the then Deputy Minister of Executive Council, Mr. C. Peter Watson, dated April 24 and July 30, 2014. The Applicant has used a pseudonym throughout these proceedings for reasons which will be made clear.

[ 2 ] In the April 24, 2014 decision, Mr. Watson denied the Applicant’s request to be exempted from the effects of Treasury Board Directive No. 1/2014, being the Compensation Disclosure Directive (“Directive”), issued pursuant to the Financial Administration Act , RSA 2000, c F-12, ss 5–7. The Applicant submitted supplemental information with a second request that she be exempted from the Directive, but on July 30, 2014, Mr. Watson again decided to deny the request. [ 3 ] The Applicant seeks a variety of relief, including orders that quash Mr.

Watson’s decision and direct him to reconsider the Applicant’s request for an exemption from the Directive, as well as a declaration that the Directive is ultra vires its enabling legislation. [ 4 ] For the reasons below, this application for judicial review is dismissed. II. Facts [ 5 ] On December 19, 2013, the Government of Alberta announced a new policy to disclose the compensation of government employees whose base salaries or severance payments totaled $100,000 or greater. This policy came into effect on January 20, 2014 in the form of the Directive identified above.

The Directive required that the Government disclose by January 31, 2014 the compensation information for the 2012 and 2013 calendar years, and that successive disclosures be made by June 30, 2015, and each year thereafter. [ 6 ] Under the Directive, the Government would disclose the Applicant’s name, position, and compensation. Section 3(3) of the Directive provides that the Treasury Board may exempt “any information the disclosure of which, in [the Treasury Board’s] assessment, could unduly threaten an individual’s safety”.

The President of the Treasury Board delegated the determination of individual exemption requests to the Deputy Minister of Executive Council. [ 7 ] In anticipation of the enactment of the Directive, a number of Alberta Crown prosecutors sought to be excluded as a class from its scope. [ 8 ] On January 24, 2014, the Applicant received a mass email from the Deputy Minister of Justice and Solicitor General, then Mr. Tim Grant, advising that she met the compensation threshold for disclosure under the Directive.

This notice did not reference section 3(3) specifically or the possibility of exemption generally. [ 9 ] As a follow-up to Mr. Grant’s email, the Assistant Deputy Minister of the Alberta Crown Prosecution Service advised Crown prosecutors as a group by email that a class exemption would not be made for prosecutors, in response to an informal request that had been made for a class exemption. [ 10 ] On January 29, 2014, the Applicant commenced a proposed class action on behalf of all Crown prosecutors to enjoin the application of the Directive to them.

The next day, the Applicant applied for and obtained an interlocutory injunction enjoining the publication of prosecutors’ salary information. That injunction remained in effect until it was set aside by the Court of Appeal on June 6, 2014 ( Doe v Alberta , 2014 ABCA 188 , leave to re-hear appeal dismissed 2014 ABCA 246 , 69 CPC (7th) 44). The Court of Appeal based its decision in part on the strength of an assurance that Mr.

Watson gave the Court that the Applicant’s information would not be disclosed until her application for judicial review of the decision was heard. [ 11 ] On January 31, 2014, the Government posted the first disclosure of names and compensation information. Further to the assurance that Mr. Watson gave, the Applicant’s salary information was not included as part of this first disclosure. [ 12 ] The Applicant deposed that it was during the process of applying for the injunction that she learned of the Directive and the exemption provision therein. On February 25, 2014, she emailed Mr.

Grant indicating her wish to apply for an exemption, who replied with the information that a Guideline and application form were being developed. Mr. Grant emailed those documents to the Applicant on April 8, 2014. [ 13 ] On April 11, 2014, the Applicant submitted to Mr. Grant’s office her application for an exemption. The application form does not require an oath or affirmation.

In describing the threats to personal safety that would follow from disclosure of her name and salary information, the Applicant relied on the following arguments, as I understand them: 1) the risk to the personal safety of Crown prosecutors is notorious, evidenced by resources the employer has invested, including security protocols and the employment of a security officer whose job is to foster the security of staff in the Criminal Justice Division; 2) the Applicant is aware of the apprehended security risk that other Crown prosecutors feel; 3) the Applicant has been subjected to the hostility of criminal defendants; 4) the Applicant has prosecuted individuals who have engaged in identity theft crimes; 5) some criminals retaliate against Crown prosecutors by, inter alia , filing liens on property held by Crown prosecutors, establishing imposter social media profiles, and swearing private Informations against Crown prosecutors; and 6) the Applicant is aware of a Crown lawyer exempted from salary disclosure because of his dealings with a “Freeman on the Land” defendant. [ 14 ] The Applicant summarized her points by arguing her belief that “the dissemination of specific income information … poses a specific and disproportionate threat to me, who is at risk of victimization by persons that are already criminally disposed.

I believe that the harm, once done, is irreparable and ongoing.” [ 15 ] On April 16, 2014, Mr. Grant routed to Mr. Watson his recommendation against exempting the Applicant from the Directive. He opined that the Applicant did not meet the onus for establishing that an exemption should be granted. In particular, he advised that

the Applicant did not demonstrate a causal connection between an exemption and her personal safety, actually or hypothetically. [ 16 ] On April 24, 2014, Mr. Watson issued a memo to the Controller of Treasury Board and Finance (“Controller”) wherein he advised that he had decided not to grant an exemption to the Applicant (“Decision No. 1”). Mr. Watson noted that the Applicant’s concerns would apply generally to Crown prosecutors and consequently the Criminal Justice Division is working actively to mitigate such personal safety risks.

He noted that the Applicant’s name and occupation are known to external parties, as is her salary range. He closed by advising that he would be happy to “reconsider the application” if the Applicant brought forward “any additional specifics that are relevant to [her] personal situation”.

Due to administrative delays in routing this decision to the Applicant, she did not become aware of it until May 28, 2014, when the Executive Director of Human Resources issued it to her, two days after the Court of Appeal heard arguments on the injunction appeal. [ 17 ] On June 23, 2014, the Applicant filed an Originating Application for Judicial Review giving rise to these proceedings. Four days later, she accepted Mr. Watson’s invitation to provide “additional specifics”. She emailed him further submissions using the prescribed exemption application form, copying Mr.

Grant and various other departmental officials. [ 18 ] The supplemental submissions were of the following nature: 1) the Applicant several years ago was prosecuting a “Detaxer” in Morinville for obstruction of justice who was believed by some to be weaponizing writing pens, and consequently the Applicant was removed from the file before it was moved to Edmonton for security reasons; 2) the Applicant also several years ago had been prosecuting a man convicted of criminal harassment, and during his time in prison he wrote letters to a family member which contained hostile and very unflattering language about the Applicant, which triggered the Crown’s office to remove the Applicant from a subsequent prosecution of this man; and 3) if the Applicant’s name and salary information were disclosed, she would be at greater risk of being targeted for “lawsuit purposes”, identity theft, and criminal harassment. [ 19 ] She closed by stating that it would be “completely unreasonable to make [her] wait until the threat has become real … before you consider there to be a significant concern worthy of exemption”. [ 20 ] On July 2, 2014, Mr.

Grant sent a memo to the Controller recommending that the Applicant’s supplemental request for an exemption should not suffice to overturn Mr. Watson’s earlier decision to deny the exemption. In his memo, Mr. Grant addressed the Applicant’s submissions in turn. He concluded by stating that the Applicant “provided no link between the publication of … her salary and an undue threat to … her safety”. [ 21 ] On July 7, 2014, the Controller forwarded to Mr. Watson the Applicant’s supplemental exemption request and Mr. Grant’s recommendation, along with 15 other exemption requests from Crown prosecutors. [ 22 ] Mr.

Watson sought contextual information from Mr. Grant to assist him in reviewing the requests. On July 22, 2014, Mr. Grant answered Mr. Watson’s questions regarding the nature of the work of Crown prosecutors and the risks they face as a result of their job position. [ 23 ] On July 30, 2014, Mr.

Watson sent a memo to the Controller advising that he was of the view that there was no new or additional information in the supplemental request to cause him to overturn his earlier decision to deny the exemption request on the basis that the Applicant had not demonstrated any specific information to show that disclosing the salary information would unduly threaten her safety apart from concerns applying generally to Crown prosecutors (“Decision No. 2”). [ 24 ] Further, Mr.

Watson denied all but one of the 16 applications for exemptions, including the Applicant’s supplemental application. [ 25 ] A postscript to the procedural history: on November 5, 2015, the Alberta Government introduced Bill 5, Public Sector Compensation Transparency Act , 1st Sess, 39th Leg (assented to 11 December 2015), SA 2015, c P-40.5 , (“ Act ”). This Act requires the disclosure of compensation paid to a wide variety of public sector employees, appointees and others, over and above the individuals affected by the Directive.

The Act supplements the Directive to include certain employees who work for agencies, boards, commissions, post-secondary institutions, and health service entities. [ 26 ] I gave the parties an opportunity to comment on whether this legislative development should affect my consideration of this application for judicial review. Counsel for the Respondent took the position that this new Act should not affect the outcome of this application. Counsel for the Applicant did not make any submission on this point.

Accordingly, I conclude that this new Act should have no bearing on the outcome of this judicial review application. III. Preliminary Issue [ 27 ] As noted above, the Originating Application impugns Decision No. 1. The Applicant filed the Originating Application before she submitted to Mr. Watson her supplemental request for exemption and therefore before he issued Decision No. 2. Counsel for the Applicant filed written arguments on October 30, 2015. The procedural history and facts included therein do not refer to events after May 28, 2014, when the Applicant received notice of Decision No. 1.

Counsel also writes that “[t]he decision under review is a Memorandum from C. Peter Watson … to Darwin Bozek [dated April 24, 2014]”, being Decision No. 1. [ 28 ] In oral argument, however, Counsel for the Applicant advised the Court that he had intended to supplement the record with material related to Decision No. 2. Counsel for the Respondent did not object to the Applicant being given an opportunity to do so following the hearing. Counsel for the Respondent subsequently filed a supplemental record of proceedings that would appear to

comprise the extra material that opposing counsel had referred to in respect of Decision No. 2. With permission, Counsel for theRespondent took advantage of the opportunity to file a supplemental brief. [29] Although an Originating Application is a commencement document, there is no rule of court that closes pleadings in judicialreview proceedings that are commenced by an Originating Application.

This Court has held that, in applications for judicial review,pleadings are not closed until the hearing has been held (Friends of the Athabasca Environmental Association v Alberta Public HealthAdvisory and Appeal Board (1994), (AB KB), 153 AR 225 at para 21; Simonelli v Rocky View No 44 (MunicipalDistrict) (2004), 2004 ABQB 45 , 350 AR 286 at para 54). [30] Further, there is no suggestion that my considering the supplemental material offends the general rule that the evidentiaryrecord before this Court on judicial review is restricted to the evidentiary record that was before the administrative decision-maker(Connolly v Canada (Attorney General), 2014 FCA 294 at para 7, 466 NR 44). [31] However, given that the Respondent did not object to the prospect of the Applicant submitting further material regardingDecision No. 2, and given that both parties were given the opportunity to provide supplemental written argument, I see no reason not toconsider the supplemental material and arguments. [32] I will refer throughout to both decisions collectively in singular, although I am cognizant that two decisions are under review.Where necessary, I will distinguish them.

IV. Issues [33] The issues to be determined in these proceedings are as follows: 1) Did Mr. Watson have jurisdiction under the Directive to decide against granting an exemption? 2) Did Mr. Watson exercise his discretion improperly? 3) Did Mr. Watson improperly prejudge the matter? 4) Did Mr. Watson improperly fail to advise the Applicant of the case to be met? 5) Does Mr. Watson’s decision meet the applicable standard of review? V. Standard of Review [34] There are several issues raised on this application, and accordingly the standard of review may vary depending on the issuebeing considered. [35] Whether Mr.

Watson acted outside his statutory authority is a legal question. The standard of review to be applied todetermine those questions is correctness (Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53at para 18, [2011] 3 SCR 471). [36] Prejudgment of the merits of a decision may show bias.

The standard of review of actions or decisions which are alleged toevidence bias is correctness, but it also may involve some form of deference on issues which are contextual to the central question (Ho vAlberta Assn of Architects, 2015 ABCA 68 at paras 20, 599 AR 122, leave to appeal to SCC refused, 36395 (23 July 2015) [Ho]). [37] Whether or not Mr. Watson owed the Applicant the duty of disclosing in advance the circumstances in which he would grantan exemption is a question of procedural fairness.

The standard of review on questions of procedural fairness is whether the proceedingsmet the level of fairness required by law (Synergy Group

(2000) Inc v Alberta Securities Commission, 2011 ABCA 194 at para 25, 510AR 172).

According to David Phillip Jones & Anne S de Villars, Principles of Administrative Law, 6th ed (Toronto: Carswell, 2014) at604, note 299, the question to ask is whether the procedure was fair or not. [38] On the merits of the decision itself, Counsel for the Applicant argues that the standard of review of the decisions iscorrectness, stating that he was unaware of any guiding jurisprudence following Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1SCR 190 [Dunsmuir]. [39] After noting the lack of a privative clause, Counsel asserted that the decision maker lacks expertise in the area of security,being that he is neither a lawyer nor a police officer, nor does he have any experience in the criminal justice system.

Counsel continuedby suggesting that the Applicant’s

section 7 Charter rights are engaged, and thus the decision involves a question of law that is of centralimportance to the legal system. [40] On the other hand, Counsel for the Respondent argues that the standard of review is reasonableness, being that the questioninvolves the decision maker’s

interpretation and application of the exemption provision in the Directive which is the decision maker’shome enactment. [41] The Supreme Court of Canada has on several occasions affirmed the process that courts must apply in determining theappropriate standard of review (see e.g. Canada (CHRC) v Canada (AG), 2011 SCC 53 at para 16, [2011] 3 SCR 471). A reviewingcourt first must “ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to beaccorded with regard to a particular category of question” (Dunsmuir at para 62).

Only where the first inquiry proves unfruitful shouldthe court then consider the factors underlying a nuanced “functional and pragmatic” approach (Edmonton East (Capilano) Shopping

Centres Limited v Edmonton (City), 2015 ABCA 85 at para 20, 382 DLR (4th) 85, leave to appeal granted 36403 (3 September 2015)[Capilano]). [42] Justice Robertson of the New Brunswick Court of Appeal, writing extra-judicially, recently wrote that the Supreme Court ofCanada has not, since Dunsmuir, moved to the second stage of the standard of review analysis (“Judicial Deference to AdministrativeTribunals: A Guide to 60 Years of Supreme Court Jurisprudence” in The Hon. Mr. Justice T. Robertson, Peter A.

Gall & Paul Daly,Judicial Deference to Administrative Tribunals in Canada: Its History and Future (Markham: LexisNexis Canada, 2014) 1 at 80).Neither Counsel brought to my attention any cases which contradict this. [43] It is not contested that Mr. Watson was authorized and indeed required to exercise a degree of discretion in deciding whetherto grant an exemption to an employee under the Directive.

Section 3(3) of the Directives states: “The Treasury Board may exempt fromthe application of this policy any information the disclosure of which, in its assessment, could unduly threaten an individual’s safety”(emphasis added). [44] Although in some cases, any number of limitations may be placed upon a decision maker’s discretion, in other cases it will berelatively unfettered by legislation, delegated or otherwise: “This may be so, for instance, when the word ‘may’ appears unaccompaniedby language like ‘in appropriate circumstances’, or ‘upon showing just cause’.

It will then be mainly the objects of the enablinglegislation that will guide the exercise of discretion” (Ruby v Royal Canadian Mounted Police (2000), (FCA), 256NR 278 (FCA), rev’d in part on other grounds sub nom Ruby v Canada (Solicitor General), 2002 SCC 75, [2002] 4 SCR 3). [45] Of course, no discretion can be exercised in a completely unfettered manner.

Discretion must be exercised in accordance withrecognized legal principles, in a manner which is in accord with the conferring statute, and based upon factors relevant to the properfulfillment of its statutory decision-making function (Oakwood Development Ltd v Rural Municipality of St François Xavier, (SCC), [1985] 2 SCR 164 at 175 [Oakwood]; Rubin v Canada Mortgage and Housing Corp (1988), (FCA), 86 NR 186 (FCA)).

Justice L’Heureux-Dubé provided this summation of the limits to the exercise of discretion: “discretion mustbe exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrativelaw, the fundamental values of Canadian society, and the principles of the Charter (Baker v Canada (Minister of Citizenship andImmigration), (SCC), [1999] 2 SCR 817 at 855). [46] In this case, the grant of discretion, on the surface, has not been narrowed.

The Applicant has not made any particularargument that the exercise of discretion should be viewed as narrow, except in light of Counsel for the Applicant’s arguments regardingthe expertise of the decision maker and the Applicant’s

section 7 interests, which I will address below. [47] Counsel for neither party provided jurisprudence which directly addresses the first step in determining the appropriatestandard of review. However, there is authority which directly addresses the question of whether and how much deference is owed todiscretionary decisions. [48] There is a presumption that the reasonableness standard of review applies to a decision maker’s

interpretation of its enablingstatute.

The deferential standard of reasonableness applies unless the question is constitutional in nature, a true question of jurisdiction,involves the jurisdictional lines between specialized tribunals, or is a question of general law of central importance to the legal system asa whole and which is outside the administrative tribunal’s expertise (Alberta v McGeady, 2015 ABCA 54 at para 3, 593 AR 147, leave toappeal to SCC refused, 36334 (16 July 2015)). [49] The Supreme Court of Canada has repeatedly stressed that deference will usually apply automatically when the decision isdiscretionary, absent evidence of bad faith or discrimination, and so long as the discretion has been exercised in accordance with theprinciples of natural justice (see e.g.

Dunsmuir at para 53; Oakwood at 173–74; Maple Lodge Farms Ltd v Government of Canada, (SCC), [1982] 2 SCR 2 at 7–8). [50] The Chief Justice of the New Brunswick Court of Appeal recently explained the reason why non-adjudicative, discretionarydecisions are afforded such a high level of deference: “[D]ecisions reflect policy choices that involve the balancing of multiple sets ofinterests or considerations.

The decision-maker is in a better position to make decisions directed toward the attainment of the purposes ofthe legislation than a court” (New Brunswick (Minister of Education) v Kennedy, 2015 NBCA 58 at para 83, 392 DLR (4th) 187). [51] Although this Court must, if possible, identify the appropriate standard of review at the first step of the Dunsmuir analysis, Iwill briefly comment on the assertion made by Counsel for the Applicant that the decision maker lacks expertise in the area of security,being that he is neither a lawyer nor a police officer, nor does he have any experience in the criminal justice system.

Even were itnecessary to consider Mr. Watson’s expertise in this area as a factor in the second step in the Dunsmuir analysis, I must do so only asrelative to the Court’s expertise (Capilano at para 20). [52] As the Deputy Minister of Executive Council, Mr. Watson was responsible for providing advice to the Premier on policyissues and providing leadership to the public service in Alberta.

That office-holder is, presumptively, an expert on provincial governmentpolicy matters, which is presumably one of the reasons why authority to grant exemptions to the Directive was delegated to him.Although he personally may not have had particular expertise in the area of employee safety and security, he has, in essence, the entirepublic service at his disposal to advise on such matters, including officials within other key ministries responsible for overseeing andadvising on occupational safety and public security. Relative to this Court, I have no hesitation in presuming that Mr.

Watson hadsuperior expertise in matters of employee security. [53] Counsel also argued that the Applicant’s

section 7 Charter rights are engaged because the decision is “crucially important tothe personal safety of the applicant”, and thus the decision involves a question of law that is of central importance to the legal system as awhole that is outside the decision maker’s expertise. He has not suggested that the Directive or the exemption provision therein isunconstitutional.

He suggests a decision made pursuant to the exemption provision engages an applicant’s Charter rights. [54] A statutory decision maker’s decision will be reviewable for correctness if it raises a constitutional issue, a question of generallaw that is both of central importance to the legal system as a whole and outside the decision maker’s specialized area of expertise, or a

true question of jurisdiction or vires ( Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professionals , 2011 SCC 59 at para 35 , [2011] 3 SCR 616). Although the constitutional validity of a statutory provision qualifies as a question of law warranting the application of the correctness standard, a decision maker’s application of Charter values warrants deference, including where it is alleged that the decision breaches an applicant’s Charter protections ( Doré v Barreau du Québec , 2012 SCC 12 , [2012] 1 SCR 395). Even if, arguendo , this decision engaged the Applicant’s

section 7 Charter rights, this does not transform the decision into a legal question that should be reviewed on a standard of correctness. [ 55 ] In light of the weight of authority, Counsel for the Applicant has not convinced me that this Court should apply the correctness standard of review in this matter.

Having satisfied myself that this question is sufficiently addressed by considering previous jurisprudence, and in the absence of any argument or evidence which specifically addresses how narrowly the Directive grants discretion to the decision maker, I conclude that the appropriate standard of review is reasonableness. VI.

Legislation and Policy [ 56 ] Financial Administration Act , RSA 2000, c F-12: 5(1) The Treasury Board may formulate general management policies relating to the business and affairs of the Crown and Provincial agencies and do any acts it considers necessary to ensure that those policies are carried out. 6(1) Every public employee, public official, personal service contractor, revenue officer, Provincial agency, Crown - controlled organization or agent of the Crown shall furnish to the Treasury Board any information, in the form of a record or otherwise, that the Board considers necessary in connection with the exercise or performance of its powers and duties under this or any other Act . 7 The Treasury Board may make regulations and issue directives that it considers necessary in connection with the exercise or performance of its powers and duties under this or any other Act . [ 57 ] Treasury Board Directive No. 1/2014 (“Compensation Disclosure Directive”): 3.

Application and Scope

(1) Except as otherwise provided, this policy applies to compensation and Termination Allowance information in respect of the following individuals: … (

d) employees within a department of the Government established under the Government Organization Act ; …

(3) The Treasury Board may exempt from the application of this policy any information the disclosure of which, in its assessment, could unduly threaten an individual’s safety. … 6. Excluded Personal Information In respect of sections 4(1)(a)(vi) and (vii), the Minister shall exclude from disclosure under this policy any information, other than information directly related to compensation or a Termination Allowance, that in the Minister’s assessment would be an unreasonable invasion of privacy of the Designated Employee. 7.

Delegation by Minister The Minister may delegate to officials of the Minister’s department or officials of any other department of the Government any functions under this Directive. VII. Analysis Issue 1: Did Mr. Watson have jurisdiction under the Directive to decide against granting to the Applicant an exemption? [ 58 ] The Applicant in her Originating Application stated that Mr. Watson erred in his

interpretation of his jurisdiction under the Directive and the Financial Administration Act . Counsel for the Applicant did not assert this point in either of his two written briefs or in the hearing before me, nor did he introduce any evidence showing that Mr. Watson considered his jurisdiction and subsequently erred in assuming jurisdiction. [ 59 ] Sections 5(1) and 7 of the Financial Administration Act , read together, leave me with no doubt that the Treasury Board had the authority to issue the Directive.

Section 3(3) of the Directive gives the Treasury Board the discretionary authority to exempt an employee from the application of the Directive where the disclosure could, in its assessment, unduly threaten an individual’s safety. The President of the Treasury Board unambiguously delegated the determination of individual exemptions from the application of the Directive to the Deputy Minister of Executive Council. [ 60 ] In the absence of any argument to the contrary, I conclude that Mr. Watson had jurisdiction under the Directive to decide the Applicant’s request for an exemption.

The Applicant’s plea for an order setting aside the Directive as ultra vires is denied.

Issue 2: Did Mr. Watson exercise his discretion improperly? [61] Counsel for the Applicant alleges that the decision maker acted in bad faith in two ways:

(1) Mr. Watson’s failure tocommunicate his decision in a timely fashion; and

(2) Mr. Watson’s failure to advise the Court of Appeal on the interim injunctionappeal that the Applicant’s application for an exemption had by that point been denied, “while at the same time providing an Assuranceto the Court that the Applicant had an effective alternative remedy which was not exhausted”.

a) Bad faith [62] Counsel for the Respondent does not directly deny the allegation of “bad faith” in those words, but instead responds to theallegations on this point under the rubric of procedural fairness. Counsel specifically addressed Mr. Watson’s submissions to the Court ofAppeal. Counsel argued that the Applicant misconstrued Mr. Watson’s submissions and did not properly recognize that the Applicantbenefited from the assurances that Mr. Watson gave to the Court of Appeal.

Counsel noted that the Respondent has suspended andcontinues to suspend application of the Directive to the Applicant until the outcome of this application for judicial review is known. [63] The term “bad faith” is a protean concept, as illustrated by this definition by the Court of Appeal of British Columbia inMacMillan Bloedel Ltd v Galiano Island Trust Committee (1995), (BC CA), 10 BCLR (3d) 121, leave to appeal toSCC refused, 24941 (2 May 1996): Bad faith has been held to include dishonesty, fraud, bias, conflict of interest, discrimination, abuse of power, corruption, oppression,unfairness, and conduct that is unreasonable.

The words have also been held to include conduct based on an improper motive, orundertaken for an improper, indirect or ulterior purpose. In all these senses, bad faith describes the exercise of delegated authority that isillegal and renders the consequential act void.

And in all these senses bad faith must be proven by evidence of illegal conduct, adequateto support the finding of fact. [64] Bad faith also includes “acts that are so markedly inconsistent with the relevant legislative context that a court cannotreasonably conclude that they were performed in good faith” (Entreprises Sibeca Inc v Frelighsburg (Municipality), 2004 SCC 61,[2004] 3 SCR 304). [65] I will dispense immediately with the assurances that Mr. Watson gave to the Court of Appeal. The matter before that Courtwas the injunction the Applicant received on behalf of all the Alberta Crown prosecutors.

On appeal, Mr. Watson assured the Court thatif the injunction were lifted, disclosure of the name and salary information of all prosecutors would be held in abeyance for 30 days fromthe lifting of the injunction, and if he denied a prosecutor’s exemption application, disclosure would be held in abeyance for a further 30days to permit the individual to pursue other remedies such as judicial review (Jane Doe v Alberta, 2014 ABCA 246 at para 13, 69 CPC(7th) 44). [66] Apparently, Mr. Watson did not advise the Court of Appeal that he had already decided against the Applicant’s firstapplication for an exemption. Mr.

Watson later considered the Applicant’s supplementary application for an exemption, and all the whilecontinued to hold in abeyance the operation of the Directive as regarding her salary information. [67] The Applicant has presented no evidence that Mr. Watson acted in bad faith when he gave his assurances to the Court ofAppeal, or arguendo if he did, how that had any bearing on the decisions he made in exercise of his discretionary power to decide herapplications for exemption from the Directive. Indeed, when Mr.

Watson gave certain assurances to the Court of Appeal, he had alreadymade Decision No. 1 (although it had not yet been communicated through the appropriate channels to the Applicant). The Applicant hasnot shown on a balance of probabilities that Mr. Watson’s statements to the Court of Appeal had any bearing on either of his decisions,or, if they did, that they amounted to bad faith.

b) Fettering [68] Counsel for the Applicant also argued that the decision maker fettered his decision by prejudging the matter as a result ofdenying a blanket exemption for Crown prosecutors leading up to the enactment of the Directive.

The Applicant here may be allegingone or both of the following discrete points, specifically: 1) the decision-maker lost jurisdiction through an abuse of process in that heimproperly fettered his decision by curtailing his discretion based on previous decisions; and 2) the decision-maker did not affordsufficient procedural fairness to the Applicant in that he offended the rule against bias by prejudging the matter. (I address the secondpoint under “Issue 3”, below.) [69] In terms of improper fettering, Counsel for the Respondent argues that the Treasury Board’s decision not to exclude Crownprosecutors as a class prior to implementing the Directive was a legitimate policy position.

Counsel argued that Directive provided thesource of and limits on Mr. Watson’s discretion, and that the Directive on its own could not logically have fettered his discretionimproperly. [70] A decision maker exercises his or her discretion unreasonably if he or she improperly fetters his or her discretion.

Where adecision maker has been granted discretionary power to make decisions relating to policy and procedure, any attempt to apply existingpolicy blindly would amount to a fettering of discretion and amounts to a jurisdictional error (Weintz v British Columbia (AG), 1994CarswellBC 2718 (BC SC)). [71] A decision maker does not impermissibly fetter his or her discretion by giving weight to prior practices, especially where thedecision maker gives reasons for not departing from prior practices (Grafton Street Restaurant Ltd v Nova Scotia Utility and ReviewBoard, 2002 NSCA 120, 209 NSR (2d) 66).

Likewise, in the absence of evidence to suggest that relevant considerations were ignored, itwill be very difficult for an applicant to establish that a decision maker improperly fettered his or her discretion. [72] Section 3(1)(

d) of the Directive is a reflection of the policy choice made by the government not to provide exemptions forvarious categories of employees, including Crown prosecutors. The Applicant has not referred to any evidence—let alone on a balance ofprobabilities—showing that Mr. Watson improperly relied upon this prior governmental policy choice not to exempt Crown prosecutors

from application of the Directive. [73] Given the lack of evidence on this issue, I conclude that Mr. Watson did not improperly exercise his discretion, either byacting in bad faith or by improperly fettering his decision. Issue 3: Did Mr. Watson wrongly prejudge the matter? [74] Counsel for the Applicant has claimed that Mr. Watson offended the rule against bias by prejudging the matter. This is avariation on the argument that Mr. Watson improperly fettered his discretion by relying on the government’s policy choice not to grant aclass exemption to Crown prosecutors.

Counsel argued that, by virtue of the previous policy decision, Mr.

Watson prejudged thequestion of whether the risks faced by Crown prosecutors in discharging their public duties subjects them to a material risk of harm. [75] It is well settled that the test for bias of a statutory decision maker varies depending upon the role and nature of the decisionmaker and the question being decided (Ho at para 23, citing Newfoundland Telephone Co v Newfoundland (Board of Commissionersof Public Utilities), (SCC), [1992] 1 SCR 623 [Newfoundland Telephone Co]; Davis v Guelph (City), 2011 ONCA 761at para 71, 286 OAC 127, leave to appeal to SCC refused, 34637 (24 May 2012) [Davis]). [76] Cory J. in Newfoundland Telephone Co observed that there is a spectrum of decision-making tasks to be considered whendetermining the question of bias in the administrative law context, and the test to be applied is a flexible one, varying with the nature ofthe decision making body (at 636, 638–39). [77] At the adjudicative end of the spectrum, the traditional “reasonable apprehension of bias” test will apply in full force.

At theother end of the spectrum, however—where the nature of the decision is more of an administrative, policy or legislative nature—a morelenient test, known as the “closed mind” test is applicable (Davis). [78] This Court has previously suggested that where the question of procedural fairness arises with respect to bias arising fromprejudgment, the “closed mind” test should be applied, although that was in the context of an application for judicial review of a countycouncil’s vote on a rezoning by-law (Waste Management of Canada Corp v Thorhild (County) No 7, 2008 ABQB 762 at para 33, 463AR 36). [79] The test for reasonable apprehension of bias is whether an informed person viewing the matter realistically and practicallywould have a reasonable apprehension of bias.

The grounds must be serious and substantial; a real likelihood or probability is necessary,not a mere suspicion (Beaverford v Thorhild (County) No 7, 2012 ABCA 99 at para 7, 67 CELR (3d) 198). [80] The “closed mind” test says that the appearance of bias will result only if it is clear that the decision maker has a completelyclosed mind, incapable of persuasion (Citizens for Accountable and Responsible Education Niagara Inc v District School Board ofNiagara, 2015 ONSC 2058, 335 OAC 101). [81] Counsel for the Applicant is asking this Court to infer that Mr.

Watson prejudged the Applicant’s request for an exemptionbased solely on the facts that (1) prior to enacting the Directive, the government had made a policy choice not to exempt Crownprosecutors as a class and (2) the Applicant is a Crown prosecutor.

The effect of such a finding would be to upend the presumption ofimpartiality and place a reverse evidentiary burden on the Respondent, requiring that it bear the onus of showing that the decision makerdid not prejudge the matter. [82] Prejudgment of the merits by a statutory decision maker may show bias, and so the words of Létourneau JA in Arthur vCanada (Procureur général), 2001 FCA 223 at para 8, 283 NR 346 are apt: An allegation of bias … against a tribunal is a serious allegation. It challenges the integrity of the tribunal and of its members whoparticipated in the impugned decision.

It cannot be done lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or mereimpressions of an applicant or his counsel.

It must be supported by material evidence demonstrating conduct that derogates from thestandard. [83] Although the decision maker in the case at bar is not a tribunal in its ordinary sense, Létourneau JA’s statements regardingburden of proof are applicable to any application for judicial review where the decision maker’s impartiality is challenged. [84] Even applying the strictest test—“reasonable apprehension of bias”—Counsel for the Applicant has not proven bias orprejudgement, let alone even a prima facie case. In fact, the evidence suggests otherwise. [85] In his April 24, 2014 memo to the Controller, Mr.

Watson wrote, “If the applicant brings forward any additional specifics thatare relevant to their personal situation, I would be happy to reconsider the application.” This openness is consistent with the Guideline,which includes the following statement: “Where an exemption application fails to set out a case based on personal safety, then … thepertinent Deputy Minister may encourage the applicant to revise the exemption application so as to set out the facts and circumstancesmore clearly or in greater detail.” [86] The Applicant accepted Mr. Watson’s invitation to provide further specifics.

On June 27, 2014, she emailed him a secondapplication form and attached what she felt was material information. The record shows that Mr. Watson considered this secondsubmission before subsequently denying the application. [87] This Court of course cannot read a decision maker’s mind. However, this record speaks for itself. In this case, the Applicanthas failed to adduce any evidence which suggests that Mr. Watson prejudged the matter, in reference either to Decision No. 1 or DecisionNo. 2. Issue 4: Did Mr. Watson wrongly fail to advise the Applicant of the case to be met?

[88] Counsel for the Applicant argued that Mr. Watson failed to articulate in advance which circumstances would have triggeredan exemption from the Directive, and that such failure is a reviewable error and a breach of natural justice. Counsel relied on Brown vDriver Control Board (Alta) (1991), (AB KB), 123 AR 32 at para 9 (Alta QB) [Brown] for this proposition. [89] In Brown, the applicant’s driver’s licence was suspended for one year following his conviction for breathalyzer refusal. Heunsuccessfully applied to the Driver Control Board to have the suspension lifted.

The applicant applied to set aside the Board’s decision.Paragraph 9 reads: “[The Board did not] state what the circumstances were that led it not to make an exemption, nor advise whatcircumstances were needed to generate an exception, nor advise whether or how it had addressed the factors to be considered by it unders. 23.1 of the Act.” [90] Brown does not help the Applicant on this point. Firstly, Bielby J, as she then was, was referring to the content of the reasonsof the Board’s decisions, not the information or criteria disclosed in advance of the applicant making an application.

She was recitingfacts, and not stating a legal principle that assists the Applicant in the case at bar. Secondly, the question in Brown was whether or notthe Board improperly fettered its discretion. The decision does not discuss pre-decision disclosure of information or even, more broadly,whether or not the applicant in that situation had a right to know the case to meet. [91] Counsel for the Respondent argues that there is no general requirement in law for a decision maker in Mr.

Watson’s positionto advise an applicant of the criteria he or she will consider in interpreting and applying an enactment, beyond the terms of the enactmentitself. Counsel relies on Brown for the proposition that “it is open for an administrative tribunal to adopt a general policy provided thateach application is individually considered on its merits” (at para 11). [92] Counsel pointed out that the Applicant had access to the Compensation Disclosure Directive Guideline detailing theexemption process for the personal safety exemption.

This Guideline states, inter alia, the following points: 1) “An exemption is available only on grounds of personal safety …” (emphasis in original); and 2) “It is up to the employee seeking an exemption to set out … facts and circumstances that set out a case for the applicability of theexemption provision, and indicate the specific information the employee is seeking to exempt.” [93] The principle audi alteram partem refers to the requirement in administrative law that a person must know the case beingmade against him or her and be given an opportunity to answer it before the decision maker (Jones & de Villars at 263). [94] Where a decision maker tasked with making a discretionary decision considers the application of a person who applies on aform prescribed by him or her, which presumably gives the information he or she requires from the applicant, the audi alteram partemprinciple applies whenever the decision maker proposes to exercise discretion to refuse the application based on facts not presented in theapplication (Lazarov v Canada (Secretary of State) (1973), (FCA), 39 DLR (3d) 738 (FCA)). [95] The application form in the case at bar begins with the instruction, “This form must be used for exemption requests madeunder section 3(3) of the [Directive]” (emphasis added).

I take from this that the decision maker will consider exemption requests onlywhen provided in the prescribed form, and therefore is not susceptible to varying forms of applications. The instructions continue: “Thisexemption can only be granted for reasons of personal safety. See the applicable Guideline … for process requirements”. [96] The application form clearly references the Directive and the Guideline, both of which I have cited above.

Taken together,these documents unambiguously refer to only one guiding criterion that the decision maker may consider in exercising his discretion togrant an exemption, that being whether the disclosure of information otherwise required by the Directive could unduly threaten anindividual’s personal safety. [97] I agree with the Respondent that the case to meet can be found in the language of section 3(3) of the Directive. This languageis clearly reiterated in the Guideline and the application form.

If the Respondent was required under the principles of procedural fairnessto articulate in advance the case to be met, it satisfied this requirement sufficiently. Issue 5: Does Mr.

Watson’s decision meet the applicable standard of review? [98] Having decided that the appropriate standard of review is reasonableness, I must finally consider the merits of the decision. [99] Counsel for the Applicant asserted in written argument that correctness was the appropriate standard of review, and proceededto suggest that the decision maker erred in law by requiring from the Applicant proof of a threat to personal safety at an impossibly highlevel standard. Counsel suggested that Mr.

Watson erred in denying the Applicant’s request because she was not able to adduce evidenceof a specific threat to her personal safety. [100] Citing Duncan Estate v Baddeley, 1997 ABCA 100 at para 30, 196 AR 161, Counsel stated that “[f]uture events—specifically,future damages—need not be proven on a balance of probabilities, but only on the basis of simple probability or a real probability”. Thiswas an appeal from a decision dismissing a claim in tort by an estate for loss of future earnings of the deceased.

Counsel concedes thatthe case was referring to the assessment of personal injury damages, but that certainly no greater standard of proof should apply where anassessment must be made of a threat to individual safety. This case does not assist the Applicant. It addresses the assessment of personalinjury damages and has no application to application for judicial review of discretionary policy decisions. [101] Counsel asserts that it was both an error in law and also unreasonable for Mr.

Watson to have denied the exemption requests,given that the Applicant articulated a range of risks she faces from individuals she deals with in the course of her work, the fact that sheis actively battling their activities, the ease with which specific salary information can be used for identity theft, and numerous instanceswhere the Respondent has already recognized these risks and put into place preventive or proactive measures for the safety of Crownprosecutors. [102] Counsel for the Respondent argued that the decision maker applied the standard contained in the exemption provision, namely,

requiring some basis for the conclusion that an applicant’s individual safety could be unduly threatened by the disclosure of salary information. [ 103 ] Counsel countered his friend’s argument that Mr. Watson imposed an impossibly high onus, namely to prove a future event as a certainty.

Further, Counsel noted that the Applicant did not identify in her requests any circumstances specific to herself which would give rise to an undue threat to her safety if her salary information were published, nor was she able to describe any way in which the disclosure of her individual salary information could create such a threat. Instead, the Applicant relied on generalized concerns common to all Crown prosecutors, for which safety measures already exist. [ 104 ] Counsel insisted that Mr. Watson’s decision reflected a reasonable

interpretation of the Directive which constitutes his home enactment, and the standard he applied was consistent with the position of the Treasury Board, which enacted the Directive, that Crown prosecutors should not be exempted from its scope as a class. [ 105 ] On an application for judicial review of a discretionary decision which is being reviewed for reasonableness, the Court will not engage in a process of weighing the various factors that the decision maker considered ( Agraira v Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 at para 91 , [2013] 2 SCR 559). [ 106 ] To assess reasonableness, a reviewing court looks for “the existence of justification, transparency and intelligibility within the decision-making process” and “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” ( Dunsmuir at para 47 ). [ 107 ] The question to ask is whether the decision falls within a range of reasonable outcomes having regard for both the context in which the decision was made and the fact that the decision itself involves policy matters in which a reviewing court should not interfere by substituting its own opinion to that of the decision maker ( Malcolm v Canada (Minister of Fisheries and Oceans) , 2014 FCA 130 , 460 NR 357, leave to appeal to SCC refused, 36012 (20 November 2014)). [ 108 ]

Section 1 of the Directive states that its purpose is to provide “a framework for requiring routine disclosure of public service salary, benefit and severance information”. It applies to employees in all government departments, including senior executives, who earn a salary greater than a specified threshold.

Further to section 4(1)(a), the government discloses the following information, inter alia , about an employee to whom the Directive applies: name; most recent position held; most recent office or department; amounts of salary and benefits; and most recent salary range. [ 109 ] The exemption provision in section 3(3) recognizes that the disclosure of this information “could unduly threaten an individual’s safety”. By its very nature, the exemption provision is an exception to the general rule of salary disclosure.

It would frustrate the intention of the Treasury Board if the word “could” in section 3(3) were interpreted to mean that the exemption applied to any individual who asserted a bare possibility of the threat to personal safety. [ 110 ] On the other hand, although the decision maker is free within his or her discretion to establish some reasonable minimal threshold before accepting that an applicant’s personal safety could be threatened by disclosure of salary information, the decision maker cannot set an impossibly high onus, because to do so would likewise defeat the intention of the Treasury Board in enacting this Directive which has general application across government. [ 111 ] Although there is no evidence that sheds light on the threshold Mr.

Watson had in mind when considering the Applicant’s requests, the record does show that at least 16 Crown prosecutors applied for an exemption under this provision, and one of those requests was granted. This is evidence not only that Mr. Watson’s mind was not closed to requests for exemption, but also that the threshold to establish an entitlement to an exemption was not impossibly high, as claimed by Counsel for the Applicant. [ 112 ] There is no specific standard of proof specified in the provision that guides the decision maker.

However, it is open to him or her to require some persuasive information from an application that logically associates the disclosure of that individual’s salary information with a threat to the personal safety of that particular individual.

It is not sufficient for an applicant to claim that his or her membership in a particular class of employees alone exposes him or her to a greater threat of personal safety, especially when the Treasury Board chose not to provide for class exemptions in the Directive. [ 113 ] There are a great many public servants who daily put themselves at risk of personal safety in the discharge of their obligations.

However, it does not necessarily follow that the disclosure of their salary information materially increases these risks. [ 114 ] However, there likely are circumstances where an employee’s name, job title, and work unit are not notorious, and where the disclosure of this information might indeed increase the risk to his or her personal safety. Crown prosecutors are notorious in the sense that, as a general rule, they regularly appear and identify themselves by name and occupation in open court. By the Applicant’s own admission, her role as a Crown prosecutor brings her into courtrooms in that capacity.

Her identity would be particularly notorious for accused individuals whom she is prosecuting on behalf of the Crown. [ 115 ] I suspect there are senior prosecutors in administrative or managerial capacities who do not regularly appear in open court and whose identities would not be notorious. The Applicant does not fit into this category.

She acknowledges the notoriety of her identity, at least in relation to individuals she is prosecuting and of whom she is expressing certain fears. [ 116 ] The Applicant in her requests for exemption from the Directive has made statements that reasonably reflect the threat to personal safety she faces by virtue of her role as a Crown prosecutor.

In support of this assertion, she refers to steps that the Respondent has taken to increase the level of safety and security for Crown prosecutors generally, and herself individually as it relates to specific cases she was handling. [ 117 ] The Applicant also makes generalized statements about the increased risk of identity that Crown prosecutors face and how this leads to a greater risk of being the victim of a crime. This may or may not in fact be true.

[ 118 ] However, given that the Applicant’s name and job title are already notorious among criminal defendants who are the subject of her prosecution, it is not reasonable to conclude that disclosing this information on a government website (along with the salary information of likely hundreds or thousands of other employees) would expose her to a greater risk of personal safety than she already faces by virtue of her job as a Crown prosecutor. [ 119 ] The Applicant in her second request for an exemption attached a lengthy reproduction of intercepted written correspondence, apparently between a gentleman she prosecuted and his family member.

The correspondence is prolix. In it, the gentleman refers to the Applicant crudely and aggressively, noting her responsibility in prosecuting him. [ 120 ] It was reasonable for Mr. Watson to conclude that this correspondence did not show that there could be a risk to the Applicant’s personal safety were the government to disclose her salary information. It certainly does highlight that the Crown may need to take steps to ensure her personal safety in relation to this individual.

However, the Applicant has failed to draw the link necessary for the Respondent to make the reasonable conclusion that her personal safety could be at increased risk as a consequence of the disclosure of her salary information. [ 121 ] By way of memos to the Controller, Mr. Watson wrote reasons for both of his decisions. These memos are cogent, clear, and thorough, reflecting the factors that Mr. Watson considered in arriving at his decisions. These factors reflect the arguments that the Applicant made in her requests, and they reasonably lead to conclusions based on Mr.

Watson’s assessment of the risk to personal safety that the Applicant could face if her salary information were disclosed. VIII. Conclusion [ 122 ] I conclude as follows: 1) Mr. Watson had jurisdiction to make the impugned decisions; 2) he did not exercise his discretion improperly; 3) he did not improperly prejudge the matter; 4) he did not improperly fail to advise the Applicant of the case to be met; and 5) his decisions were reasonable. [ 123 ] Accordingly, I dismiss this application in its entirety. Heard on the 20 th day of November, 2015. Dated at the City of Edmonton, Alberta this 7 th day of March, 2016.

Don J. Manderscheid J.C.Q.B.A. Appearances: P. L. Moreau Moreau & Company for the Applicant

J. Faulds, Q.C. & G. A. Harding, Q.C. Field LLP for the Respondent