Davis v Alberta (Information and Privacy Commissioner), 2016 ABQB 578

Court of Queen’s Bench of Alberta Citation: Davis v Alberta (Information and Privacy Commissioner), 2016 ABQB 578 Date: 20161014 Docket: 1609 00010 Registry: Peace River Between: Alane Davis Applicant - and - Alberta (Information and Privacy Commissioner) Jill Clayton Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ Introduction [ 1 ] Ms.

Davis applies for judicial review of a December 3, 2015 order by an adjudicator of the respondent Office of the Information and Privacy Commissioner (“OIPC”). For reasons which follow, the application is dismissed. Background [ 2 ] Ms. Davis’ is self-represented on this application. She filed an Originating Application on January 15, 2016. Though styled as an application for judicial review, it is based on and seeks remedies for matters clearly outside the scope of a judicial review application. [ 3 ] The application is accompanied by Ms. Davis’ affidavit filed January 15, 2016, and Brief filed April 11, 2016.

[ 4 ] The impugned order arises from Ms. Davis’ request for all of the information gathered by the Peace River School Division #10 (“the School Division”) in relation to Ms. Davis’ complaint of bullying. Ms. Davis also requested records containing information provided by individuals who had provided references for her. [ 5 ] The School Division responded that it was unable to locate records, at least records in additional to those already provided, regarding a complaint of bullying. The School Division did find records relating to the requested references and those were provided. [ 6 ] Ms.

Davis sought review of the School Division’s responses. [ 7 ] The review and decision December 3, 2015, concluded that the School Division had searched and responded to Ms. Davis openly, accurately, and completely. This is as more fully set out at paragraph 23 of the impugned decision. [ 8 ] As part of the review, the adjudicator was advised by the School Division that in connection with references, certain reports made were verbal, without notes in support.

The adjudicator noted that there is no ability to make an access request for information that is not recorded in some form. [ 9 ] The adjudicator also considered Ms. Davis’ request that the OIPC make certain inquiries. In response, the adjudicator agreed to conduct an inquiry as to whether the School Division met its duty to assist her by conducting a reasonable search for responsive records and by responding to Ms. Davis in that regard openly, accurately, and completely.

The adjudicator declined however to inquire into the School Division’s decision regarding an investigation into complaints, or to verify that the responses of Ms. Davis’ references were supportive of her being hired. Analysis Standard of Review [ 10 ] I agree with the submissions of counsel for the OIPC that the standard of review is reasonableness, other than as to issues of natural justice. The Merits [ 11 ] I have reviewed the entirely of Ms.

Davis’ submissions including her affidavit filed January 15, 2016, the many exhibits to that affidavit which comprise more than 200 pages, her Brief filed April 11, 2016 comprised of a 19-page written argument, joined by 12 attachments together amounting to more than another hundred pages. [ 12 ] I have also been assisted by the written submissions of counsel for the OIPC, and for the School Division, filed April 4, 2015 and March 29, 2016 respectively. [ 13 ] Ms.

Davis has many complaints, for example that if no records exist, that is a breach of School Division policy; that a former School Division principal allegedly promised to send her an email, which allegedly never materialized; that the OIPC should have contacted the principal to obtain the alleged email; and that she has been harmed and, as such, the OIPC should recommend prosecution of certain persons. Ms.

Davis’ extensive written materials contain these and other complaints which again, I have reviewed, but which I will not attempt further to summarize. [ 14 ] Having considered all of what was before me, I am satisfied that on the appropriate standard of review the application for judicial review must fail. [ 15 ] The adjudicator was reasonable to conclude that the School Division had complied with its duties in response to the appropriate parts of Ms. Davis’s request for review. Nothing in Ms.

Davis’ material, or oral submissions before me, credibly suggests otherwise. [ 16 ] The adjudicator properly concluded that certain remedies sought by Ms. Davis were outside of the adjudicator’s and OIPC’s jurisdiction. [ 17 ] I agree for example with the respondents that Ms.

Davis could not reasonably expect the School Division, or the adjudicator, in any way to facilitate inquiries of a former employee of the School Division for records potentially once in that person’s possession, that is to say, records not within the custody of control of the School Division. [ 18 ] With regard to any natural justice issues arising in the application before me, I agree with the respondents that any such issues have been raised for the first time in this judicial review and as such are not properly before the court. Further Submissions [ 19 ] On June 29, 2016 Ms.

Davis gave notice that she wished to make further submissions and/or bring forward further evidence, following the filing of materials as set out above, and the hearing of the matter on April 27, 2016. Ms. Davis refers to evidence of alleged retaliation against her. Ms. Davis’ June 29, 2016 letter asks that “…if [this court] were to decide that this Order should be reviewed, I would hope [the court] will NOT appoint the OIPC Commissioner, but appoint another judge that will ensure the FOIP Act is being followed…” [ 20 ] In that I have dismissed Ms.

Davis’ application for judicial review, it is strictly-speaking unnecessary for me to consider

further her June 29, 2016 submissions. I will add only that I agree wholly with the submissions of counsel for the OIPC, dated July 6, 2016, citing Alberta Liquor Store Association v Alberta (Gaming and Liquor Commission , 20106 ABQB 904, at paras 40-42. Conclusion [ 21 ] The application for judicial review is dismissed. [ 22 ] If they cannot agree, the parties may speak to costs. Heard on the 27 th day of April, 2016, further written submissions received between June 29 and July 7, 2016. Dated at the City of Edmonton, Alberta this 14 th day of October, 2016. Peter Michalyshyn J.C.Q.B.A.

Appearances: Alane Davis Self-Represented Litigant for the Applicant Kate L. Hurlburt, Q.C. Emery Jamieson LLP for the Respondent (Alberta) Yvon Prefontaine Alberta School Board Association for the Respondent (Peace River School Division No. 10)