University of Calgary v Alberta (Information and Privacy Commissioner), 2021 ABQB 795

Court of Queen’s Bench of Alberta Citation: University of Calgary v Alberta (Information and Privacy Commissioner), 2021 ABQB 795 Date: 20211005 Docket: 1801 01021 Registry: Calgary Between: The Board of Governors of the University of Calgary Applicant - and - Office of the Information and Privacy Commissioner and Jacqueline Ryrie Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice K.M. Horner ________________________________________________________ Introduction [ 1 ] In October 2008, Ms. Jacqueline Ryrie (now Ms.

Fernet) filed an access to information request under the Freedom of Information and Protection of Privacy Act seeking records about herself in the possession of her former employer, the University of Calgary, that were created between August 2007 and October 2008. Around the same time, Ms. Fernet sued the University for wrongful

dismissal, filed a human rights complaint, and a complaint under FOIPP . The University responded to Ms. Fernet’s request for records in the wrongful dismissal litigation and in the access to information request. [ 2 ] In the wrongful dismissal litigation, the University claimed solicitor-client privilege over all records arising from its communications with its in-house counsel and its external counsel. Its affidavit of records bundled and identified approximately 100 pages of records by document number, as was the practice at the time pursuant to Dorchak v Krupka , 1997 ABCA 89 . Ms.

Fernet did not challenge the privilege claim in the civil action. The University similarly claimed solicitor-client privilege over the same records as a bar to disclosure under section 27(1)(

a) of FOIPP in the access to information request. Ms. Fernet questioned the University’s privilege claim and in March 2009 asked the Information and Privacy Commissioner to undertake an inquiry. [ 3 ] The Commissioner, through her delegate, sought further information from the University to support its claim of solicitor- client privilege, including information such as the date and length of the record, some information regarding the author and addressee, etc.

In response, the University submitted both sworn and unsworn evidence, including an affidavit from its Access and Privacy Coordinator, a letter from its Provost and Vice-President (Academic), and a letter from its external counsel.

The purpose of these letters was to substantiate the privilege claim. [ 4 ] Dissatisfied with the University’s response, on October 20, 2010 the delegate issued a Notice to Produce Records under section 56(2) of FOIPP on the grounds that the University had failed to provide adequate evidence of its claim of solicitor-client privilege and that it was necessary for him to review the records to fairly decide the issue of whether the University had properly withheld those records under section 27(1).

He ordered the University to produce to him for his review a complete copy of the records over which it claimed solicitor-client privilege. [ 5 ] On October 29, 2010, the University applied for judicial review of the delegate’s production order. The main issue in the judicial review proceeding was whether

section 56 of FOIPP granted the delegate authority to compel production of solicitor-client privileged records to confirm the validity of the assertion of privilege. This Court dismissed the University’s application, concluding that the delegate had the authority to compel production under

section 56. [ 6 ] The Court of Appeal allowed the appeal, holding that FOIPP did not give the delegate the power to compel production of records over which the University had asserted solicitor-client privilege. The Supreme Court of Canada upheld the Alberta Court of Appeal. The majority concluded that FOIPP did not give the Commissioner or her delegate the power to compel the University to produce records over which it had claimed solicitor-client privilege. The Supreme Court also commented on the validity of the privilege claim itself. [ 7 ] Two months after the Supreme Court’s decision, the Commissioner, through a second delegate, elected to continue the inquiry relying on

section 72 of FOIPP . She took the position that the Notice to Produce was an interim order and that the substantive question remained undecided, namely, whether the University had properly withheld records that it claimed were subject to solicitor- client privilege.

In her view, the court had addressed only the question of whether a delegate could order the production of allegedly solicitor-client privileged records to determine the validity of the privilege claim; it had not decided the specific question of the validity of the privilege claim with respect to all the documents at issue in this case. [ 8 ] The University strongly objected to the continuation of the inquiry and argued that the access request had been fully adjudicated through the Supreme Court’s final decision in the judicial review proceedings.

It raised arguments relying upon the doctrines of res judicata , issue estoppel, functus officio , mootness, and abuse of process in support of its position. [ 9 ] Notwithstanding the University’s objections, on July 31, 2017, the second delegate issued a preliminary decision, Decision F2017-D-01, in which she concluded that she had authority to continue the inquiry to determine whether the University had properly withheld records from Ms. Fernet.

She found that the previous judicial review in this Court arose from an interim step in the access proceedings and that there had not yet been a final decision on the privilege claim as an exception to disclosure. She accepted that she was bound by the Supreme Court’s comments regarding the validity of the University’s claim of solicitor-client privilege over some records, but she concluded that a subset of records, namely communications between the University and its in-house counsel made before Ms.

Fernet’s lawsuit had been anticipated, might not be privileged. [ 10 ] The second delegate gave the University a further opportunity to provide information, including information in relation to the considerations the Supreme Court had set out for records involving in-house counsel .

The University responded with more detailed submissions on the same points it had raised earlier, namely, that the Court of Appeal and the Supreme Court already had conclusively decided that all of the records in question, whether authored by the University’s in-house or external counsel, were privileged and that the continuation of the inquiry was barred by the doctrines and principles of res judicata , issue estoppel, functus officio , mootness, and abuse of process. [ 11 ] On December 6, 2017, the second delegate issued Order F2017-84.

She accepted the Supreme Court’s conclusions in relation to the claims of solicitor-client privilege for which there was no contradictory evidence or argument. Thus, she accepted that records of communications between the University and its in-house and external legal counsel that related to Ms. Fernet’s lawsuit or anticipated lawsuit were protected by solicitor-client privilege and need not be disclosed. She came to this conclusion because there was no argument or evidence from Ms.

Fernet about these records to challenge the University’s assertion of privilege. [ 12 ] She concluded, however, that the University had not proven its claim of solicitor-client privilege in relation to records, if any, that consisted of communications between the University and its in-house counsel that did not involve its external counsel and that predated the University’s anticipation of Ms. Fernet’s lawsuit. The evidence indicated the University had anticipated litigation by August 2008, thus the second delegate reasoned there was an as-yet-unaccounted-for 12-month period of the access request for which Ms.

Fernet had provided evidence and argument to challenge the University’s privilege claim and that this evidence and argument had not been brought to the Supreme Court’s attention. She stated that communications between the University and its in-house counsel before Ms. Fernet’s lawsuit was anticipated could have related to matters involving policy or other aspects of the University’s business, rather than legal advice. Thus, the second delegate ordered the University to disclose any such records, if they existed, to Ms. Fernet.

[ 13 ] On January 19, 2018, the University brought the current application for judicial review. It seeks an order in the nature of certiorari quashing Order F2017-84. The University’s primary argument is that the second delegate did not have the authority to continue the inquiry, neither under the FOIPP statute, nor under the common law doctrines of res judicata , issue estoppel, functus officio , mootness, and abuse of process.

The University submits that the Supreme Court decided the substantive question, namely, that the University’s assertion of solicitor-client privilege was validly made and that the Commissioner has no further authority over the matter. Finally, the University points to a number of irregularities that it says amount to breaches of natural justice and a denial of procedural fairness.

The University further submits that there was a lack of contrary evidence to substantiate the otherwise speculative concerns about the validity of the University’s privilege claim. [ 14 ] Presuming, without deciding, that the Commissioner and her delegate had statutory authority to continue the inquiry, the real question on this judicial review is whether the Supreme Court’s decision was the final word on the University’s assertion of solicitor- client privilege in this case or whether the Commissioner and her delegate still had a role in determining whether some of the withheld records should be disclosed to Ms.

Fernet. Thus, the resolution of this case requires a careful examination of the parameters of the Supreme Court’s decision. If, as the Commissioner argues, it was open for her delegate to continue the inquiry to determine if there was any “evidence to the contrary” to challenge the privilege claim, then I also must examine the delegate’s reliance on that evidence and her conclusions against the appropriate standard of review.

What is the standard of review? [ 15 ] The University argues that the standard of review in this case should be correctness, since the second delegate’s order engages the question of solicitor-client privilege. In its view, the question before me is whether FOIPP permits the Commissioner, through her delegate, to “complete” an inquiry into a moot access request, with the result that the delegate orders the disclosure of records already found by the Supreme Court to be solicitor-client privileged. In its view, this question must be answered correctly.

The University also argues that questions of res judicata and abuse of process are questions at the heart of the administration of justice and must be answered correctly. Similarly, it submits that the determination of whether a decision-maker is functus officio should be decided without deference. [ 16 ] I disagree with the University’s proposed standard of review and I accept the Commissioner’s submissions on this point.

Unlike the previous judicial review proceeding, the current application for judicial review does not deal squarely with solicitor-client privilege, rather that is the backdrop to the application. The matters directly in issue are those defined in the originating notice of motion: res judicata , abuse of process, mootness, functus officio , and procedural fairness. [ 17 ] The second delegate had to decide whether she had jurisdiction to continue the inquiry or whether the Supreme Court’s decision precluded any such continuation.

This involves an examination of inextricably intertwined legal and factual issues, including an examination of the Supreme Court’s decision and an application of the common law principles of res judicata , abuse of process, mootness, and functus officio , within the FOIPP framework.

The application of these concepts to the FOIPP context are not outside the expertise of the Commissioner or her delegate, nor are they fundamental questions at the heart of the administration of justice. [ 18 ] Relying on Manitoba Association of Health Care Professionals v Nor-Man Regional Health Authority Inc , 2011 SCC 59 at paras 38-39 & 44 , I find reasonableness is the appropriate standard of review when a tribunal applies common law and equitable doctrines. A review for reasonableness inquires into the qualities that make a decision reasonable, both in the outcome and the process of articulating reasons.

It is concerned mostly with the existence of justification, transparency and intelligibility in the decision-making process and whether the decision itself falls within a range of reasonable outcomes that are defensible in fact and law: Dunsmuir v New Brunswick , 2008 SCC 9 at para 47 . As such, I must determine whether the second delegate’s

interpretation of the Supreme Court’s decision and her conclusions about Ms. Fernet’s evidence satisfy these requirements. [ 19 ] The University also raised a number of arguments related to the principles of natural justice and procedural fairness, which invokes somewhat different principles upon review. In light of my conclusions on the substantive matters, discussed below, I find it is unnecessary to address these issues. As such, I will not discuss the standard of review as it applies to questions of natural justice and procedural fairness.

What did the Supreme Court of Canada decide? [ 20 ] Although the Supreme Court’s decision was focussed on whether the Commissioner had the authority, under section 56(3), to compel production of records for review to determine whether the claim of solicitor-client privilege was properly made, in making its decision, the highest court commented on the validity of the privilege claim itself.

Writing for the majority, Justice Côté stated the following: The delegate found that because the University failed to present evidence of its claim of solicitor-client privilege as required by the Protocol, it was necessary for the delegate to review the records. However, the Protocol is not law, and was not enacted by the legislature. Rather, it is a guide established by the Commissioner to assist adjudicators and public bodies.

At the time of the Commissioner’s request for disclosure, the prevailing authority in Alberta in civil litigation allowed a party to bundle and identify solicitor-client privileged documents by document numbers, as the University had done (see Dorchak v Krupka , …). No evidence or argument was made to suggest that solicitor-client privilege had been falsely claimed by the University. In these circumstances, the delegate erred in concluding that the claim needed to be reviewed to fairly decide the issue. (at paras 69 & 70) [Emphasis added.] [ 21 ] Similarly, Justice Cromwell stated:

The appellant conceded in the hearing before this Court that the University’s claim of privilege complied with the requirements of Alberta civil litigation practice at the time, which was governed by Dorchak v. Krupka … While I understand that these requirements have since evolved in light of the subsequent decision by the Alberta Court of Appeal in Canadian Natural Resources Ltd. v.

ShawCor Ltd. … it was, in my view, a reviewable error for the Commissioner’s delegate to impose a more onerous standard on the University in relation to its assertion of privilege than that applicable in civil litigation before the courts. This conclusion is reinforced by the fact that the evidence filed with the Commissioner met the three-part test set out in Solosky v.

The Queen , … The evidence – in particular the letter by the University’s external legal counsel – clearly asserts that the documents are communications between solicitor (the University’s external legal counsel) and the client (the University’s General Counsel, on behalf of the University); which entails the seeking or giving of legal advice; and which is intended to be confidential by the parties. (at para 127) [Emphasis added.] [ 22 ] Dealing with this same question, Justice Abella said: ...As noted by Justices Côté and Cromwell, even if s. 56(3) had allowed the Commissioner to order production of documents protected by solicitor-client privilege, the University of Calgary had provided sufficient justification for solicitor-client privilege, particularly in light of the laws and practices applicable in the civil litigation context in Alberta.

The Commissioner should have exercised her discretion in a manner that interfered with solicitor-client privilege only to the extent absolutely necessary to achieve the ends sought by the Freedom of Information and Protection of Privacy Act . (at para 137) [Emphasis added.] [ 23 ] Taken together, the three sets of reasons indicate that the Supreme Court was of the view that the University’s evidence in support of its solicitor-client privilege claim satisfied all the requirements of the civil litigation standard at the time and that there was no reason to doubt it.

How did the second delegate interpret the Supreme Court of Canada’s decision? [ 24 ] The second delegate reviewed the Supreme Court’s decision and assessed its impact on the continuation of the inquiry. Ultimately, she concluded that the Supreme Court had not made a final decision about the validity of the University’s privilege claim. She reasoned that the Commissioner had confined her appeal to the interim question of whether she had verification power under

section 56 of FOIPP to order production of records for review and that the first delegate had reserved jurisdiction on the specific question of whether the exception to disclosure under section 27(1) applied to the records in this case. For this reason, she continued with the inquiry. [ 25 ] More specifically, in relation to the Supreme Court’s reasons, she held that she was bound by that Court’s conclusions in relation to the records for which there was no evidence to challenge the privilege claim, but that she was not so bound in relation to documents for which Ms.

Fernet had presented evidence or submissions to the contrary. She explained in her July decision: …in making these comments the Court at the same time expressed its opinion that the information the University had provided would be sufficient, in the absence of evidence and arguments to the contrary , for the adjudicator to also find the records to be privileged.

I believe these comments have a powerfully persuasive effect, indeed a binding one, with regard to what the final decision relative to such facts is to be. … …given the information the adjudicator had received from the parties, which met these rules, not only should he not have ordered production of the records, he should not have “reviewed the claim”.

As noted above, this also suggests that given what the University had provided to him, in the circumstances of there being no contrary evidence , the adjudicator’s decision as to whether privilege had been properly claimed should be that the claim had been proper. (at paras 18 & 22) [Emphasis added.] [ 26 ] Later in her reasons, she reiterated her view that the Supreme Court’s decision only applied to the extent that there was no evidence to the contrary about the records: While the Supreme Court made comments relevant to what the final decision ought to be in specified circumstances, the specified circumstances (that there be no contrary evidence or arguments) did not exist with respect to all of the records at issue. (at para 42) [Emphasis added.] [ 27 ] The second delegate examined the evidentiary record and concluded that Ms.

Fernet had raised evidence to the contrary in relation to the time period prior to the University’s anticipation of litigation. In the July decision, she quoted from Ms. Fernet’s rebuttal submissions to the first adjudicator, in which Ms. Fernet explained that there could be no privilege prior to the anticipation of the lawsuit: With respect to the exceptions made under

Section 27, it is important to note that these records all pertain to the year prior to the launch of the lawsuit . [The dates for the requested information specified in the Access Request were from August 1, 2007 to the date of the request, October 20, 2008.] The suit was not contemplated until October of 2008, and the final decision made shortly after the launch of the FOIP request.

The University cannot withhold documents on the basis that “privilege” applies because they anticipated a lawsuit, since none was contemplated when the document was written . (at para 25) [Emphasis added.] [ 28 ] The second delegate also referred to further submissions from Ms.

Fernet that, in her view, cast doubt on the University’s privilege claim: In the Applicant’s recent submissions at this present stage of the inquiry, she also points out that the University’s in-house legal counsel performs many functions besides providing legal advice, and suggests this could have been this counsel’s role with respect to some of the

documents with which the counsel was involved. (at para 26) [ 29 ] In discussing these two submissions, the second delegate acknowledged that solicitor-client privilege does not arise only when there is anticipated litigation. Nonetheless, she indicated that Ms.

Fernet’s point about the time frame of her request “ may be taken as a suggestion that some of the records withheld as privileged may have been created at some earlier point during the one-year period prior to the time (August 2008) when the University may have first anticipated a lawsuit, and may relate to matters other than the subject of the lawsuit” (at para 28). [Bold emphasis added; italics in original.] She concluded that if the University did not yet anticipate a lawsuit, there was a greater likelihood that the records could relate to other matters. [ 30 ] The second delegate concluded in her July 2017 decision that Ms.

Fernet’s submissions “ raise the reasonable possibility that some of the advice that was given by in-house counsel … may have been about matters arising at an earlier stage, and concerning different subject matters, than the subject matter of the lawsuit, and may not all have been legal advice ” (at para 32). [Emphasis added.] Earlier she explained that “[ g]iven the potentially multi-faceted role of in-house counsel, it is conceivable some of the advice may have involved policy considerations or advice about non-legal questions relating to the University’s affairs as they involved the Applicant and others, rather than legal ones” (at para 31). [Emphasis added.] [ 31 ] She held that if the Supreme Court had been made aware of the fact that there was a significant period of time in which the University’s in-house counsel might have given it advice about matters relating to Ms.

Fernet other than in relation to her lawsuit, then that Court might have noted the part of the Commissioner’s affidavit that “speaks of some of the advice given by counsel to the University having been given by its in-house counsel – a circumstance calling for the consideration of the factors … in the Pritchard case” (at para 29). [ 32 ] In her December decision, the second delegate reiterated her

interpretation of what remained to be decided. She said she regarded the Supreme Court’s statements as an expression of the Court’s view that in the absence of evidence or argument to contradict the claim of privilege, the records for which the University asserted privilege should be found to be privileged. Accordingly, she concluded that for records consisting of communications between counsel (both in-house and external) and the University, which related to the lawsuit or anticipated lawsuit, must be found to be privileged. [ 33 ] She went on to find, however, that Ms.

Fernet had argued in her submissions before herself and the former adjudicator , that there may have been communications between the University and its in-house counsel that were made before her lawsuit had been anticipated and these communications could have related to matters involving policy or other aspects of the University’s business rather than legal advice.

Since, in her view, this evidence and argument had not been drawn to the Supreme Court’s attention, it remained possible that there were records among those withheld as privileged for which the University had not established the privilege claim. [ 34 ] The second delegate accepted Ms. Fernet’s most recent submissions that in-house counsel wears many hats and that, in this case, in-house counsel was involved in functionary policy and procedures, all of which Ms. Fernet alleged are functions and communications outside the scope and protection of solicitor-client privilege.

The second delegate concluded that in light of these submissions, the University had failed to confirm that “ all of the communications contained in the withheld records that took place between the University and its in-house counsel consisted of legal advice rather than merely policy advice.” [Italics in original.] [ 35 ] The second delegate’s reasons make it clear that underlying her decision is the view that the evidence contradicting the claim of privilege was not drawn to the attention of the Supreme Court.

For example, she wrote: …Judicial review was brought to decide the interim matter of how the decision about the merits of the University’s claim of privilege was to be made – that is, whether the records themselves could be compelled as evidence in this inquiry.

I do not believe the Court would wish to be taken as directing the merits be decided a particular way for records relative to which there was contradictory evidence and submissions of which it was not aware. [Bold emphasis added.] (at para 20) [ 36 ] And again, later in her reasons she expressed a similar notion: …while I cannot presume to say what the Court would have made of the Applicant’s points, I am confident that had the Court been aware that such contradictory arguments had in fact been presented and evidence identified, it would have considered them and would have decided what bearing they ought to have, before making its comments about what the previous adjudicator should have decided.

However, the Court made it clear that it was under the impression there were no such submissions and no such evidence – as already noted, possibly on the basis of the University’s statement in its factum that the Applicant had “provided no evidence or submissions to the delegate that cast any doubt on the veracity of the University’s assertion of privilege.” [Emphasis added.] (at para 27) [ 37 ] The second delegate then proceeded to analyze the evidence presented by the University, the same evidence that in fact was before the Supreme Court, and found it wanting, resulting in her disclosure order. Ms.

Jo-Ann Munn Gafuik, the University’s Access and Privacy Coordinator, swore an affidavit in which she stated: University Legal Services and external legal counsel have advised various University officials about the Applicant’s employment with the University.

I am advised by the University’s General Counsel and do verily believe that solicitor/client privilege has been asserted over the communications given and received by the University’s lawyers in respect to this matter. [Emphasis added.] [ 38 ] The second delegate explained that this makes mention of advice about employment, but does not specify that it was legal advice.

She opined that the advice given by external legal counsel would likely have been in relation to the lawsuit, but that in-house counsel may have given business advice about how to best structure reporting relationships, or about non-legal human resource issues, or could have involved matters of University policy that did not have legal implications. She went on to state: Neither do the first two sentences in the paragraph make clear that all the records withheld on the basis of privilege fall within the scope of the sentence.

The sentence that follows says nothing about advice but speaks only of the assertion of privilege. As well, again, there is no way to

know that the communications over which solicitor-client privilege “has been asserted” are coextensive with the records at issue in this inquiry. This is because it is unclear to what “this matter” refers.

It seems quite possible that it refers to the lawsuit, and the assertion of privilege that is being referred to was in the context of the lawsuit, in which case communications that took place before the lawsuit was anticipated, if any, may not fall within the scope of the statement. (at paras 40-41) [ 39 ] The second delegate went on to dissect the second piece of evidence provided by the University, namely the Provost’s letter.

The letter states that the lawsuit is being vigorously defended, that communications between the University and its legal advisers is the subject matter of solicitor-client privilege, and that the University will not waive the privilege on the records identified. First, she comments that although the statement does not use the expression “legal advice”, she accepts that the reference to “legal advisers” can be interpreted as referring to lawyers giving legal rather than policy or business advice.

Second, she indicates that the second statement is “either entirely abstract, or it is to be taken as referring to communications in the lawsuit.” With respect to the third statement, she says it might be interpreted to tie the withheld records to the communication between the University and its legal advisers. She concluded: …In other words, the three statements taken together might be thought to comprise an assertion that all the withheld records are privileged legal advice given for defending the lawsuit.

However, other documents relied on by the University say that legal advice was also given about other legal disputes. This means that not all the withheld records consist of advice about the lawsuit.

Therefore it is not possible to infer that the Provost’s three statements, taken as a whole, constitute an assertion that all of the withheld records for which privilege is being claimed consist of communications between the University and its legal counsel acting as legal advisers. (at para 43) [ 40 ] The second delegate also considered the letter from the University’s external counsel, which stated as follows: …The University must defend itself against the multiple legal matters commenced by Ms.

Ryrie and in so doing, must rely on solicitor- client privilege to ensure that communications involving the University General Counsel and its external counsel, for the purposes of giving advice and understanding the issues, remain confidential. … …Because Ms. [Fernet] has a $2 million lawsuit against the University and has initiated numerous other legal disputes, it is not surprising that a chief operating officer would exercise the right to invoke solicitor-client privilege. … …There can be no clearer case where solicitor-client privilege needs to be fiercely invoked and defended, in light of her $2 million plus lawsuit and her other multiple legal issues which she has raised against the University. [ 41 ] In relation to this evidence, the second delegate first commented that she would assume from the context that the reference to “advice” in the first paragraph is to legal advice.

She then concluded that none of external counsel’s assertions make any claim with respect to the totality of records that remain at issue in the access request. She said that the “question in this inquiry is not whether some or most of the records are covered by privilege, but whether all of them are”: at para 45. [ 42 ] The second delegate further noted that all of Ms. Fernet’s legal actions against the University were commenced in or after October 2008.

Thus, she reasoned that any advice given prior to the anticipation of this litigation would not be covered by external counsel’s assertion of solicitor-client privilege: at para 46-47.

She noted later in her reasons, however, that external counsel did mention “other legal disputes”, without specifying any dates, and that it is possible these other disputes were raised before the lawsuit was anticipated and that the advice given by in-house counsel was legal advice in relation to these disputes: at para 52. [ 43 ] In sum, the second adjudicator found that none of the three submissions put forward by the University constituted a clear assertion that all of the withheld records consisted of solicitor-client communications made for the purpose of giving or receiving legal advice.

She concluded: …Some of the statements the University presented can be taken as assertions that communications between it and its counsel (both in- house and external) that related to the lawsuit and other legal disputes, consisted of requests for and provision of legal advice; however, none of them constitute such an assertion for communications, if any exist, between the University and its in-house counsel that pre- dated the anticipation of the lawsuit and the inception of other legal disputes. (at para 49) [ 44 ] Thus, the second delegate concluded that the Supreme Court’s findings did not apply to communications between the University and its in-house counsel that took place before Ms.

Fernet’s lawsuit was anticipated because Ms. Fernet had since provided evidence to the contrary, which the University did not contradict. Was second delegate’s decision reasonable? [ 45 ] The University argues broadly that the second delegate should not have ordered the disclosure of documents to Ms. Fernet because the Supreme Court found, in three concurring sets of reasons, that those very documents were protected by the University’s validly asserted solicitor-client privilege.

The University submits that the second delegate’s decision is improper and undermines the principles of finality, consistency, economy, and the integrity of the entire judicial process. It is in this context that the University puts forward its arguments about the application of the doctrines of res judicata , issue estoppel, abuse of process, and functus officio .

It also submits that the Court of Appeal and the Supreme Court held that the matter was moot. [ 46 ] In its written brief before this Court, the University also made comprehensive arguments that the second delegate lacked jurisdiction to proceed with the inquiry, under a proper

interpretation of sections 70 and 72 of FOIPP . The University did not, however, focus on this argument in its oral submissions, nor did it include a reference to these specific provisions in its Originating Notice. The bulk of the hearing was devoted to arguments about the application of common law and equitable principles to the continuation of the

inquiry, as these were the grounds for the application set out in the Originating Notice. I prefer to decide this case on the initial grounds of review, which were properly raised in the Originating Notice and that were argued by the parties orally and in writing. I will make no decision about the

interpretation of sections 70 and 72 of FOIPP . [ 47 ] The majority of the University’s arguments, aside from the mootness claim, ultimately turn on whether the second delegate was reasonable in limiting the Supreme Court’s finding of validly claimed privilege to some of the records rather than the entirety of the records at issue. Implicit in this question is whether she was reasonable in finding that there was evidence to the contrary in relation to the specific records that she ordered to be disclosed.

As previously stated, the reasonableness standard of review inquires into the qualities that make the decision reasonable: that in the articulation of the reasons for the decision, and in the decision itself, there exists justification, transparency and intelligibility such that the decision falls within a range of reasonable outcomes that are defensible in fact and law. For the reasons that follow, I find that the second delegate was unreasonable in coming to her conclusions. [ 48 ] First, as discussed above, the second delegate found that Ms.

Fernet had adduced in her initial submissions “evidence to the contrary” with respect to the time period prior to the University’s anticipation of litigation, but that these submissions were not brought to the Supreme Court’s attention. This is inaccurate. While it is unclear whether the passage quoted above at para 27, taken from Ms. Fernet’s rebuttal submissions, were in the record before the Supreme Court, a further letter dated October 7, 2010, contained essentially the same information and was included in the Commissioner’s records. In the October 7 letter, Ms.

Fernet wrote the following: As was indicated in the rebuttal submission , the law suit was filed 10 days after the FOIP request was received by the University. Thus, with respect to the exceptions made under

Section 27, it is important to note that these records all pertain to the year prior to the launch of the lawsuit . The suit was not contemplated until October of 2008, and the final decision was made shortly after the launch of the FOIP request.

Further, for what it is worth, it is unlikely that much of the correspondence falls within the prescribed exceptions under either the Court of Queen’s Bench, or under the Privacy Act. [Emphasis added.] [ 49 ] It was unreasonable for the second delegate to assume that the Supreme Court was unaware of these submissions, given their inclusion in the materials before that Court. Furthermore, the University raised the question of the nature and quality of the alleged evidence to the contrary in its submissions before the Supreme Court.

It argued that the first delegate did not explain why he disbelieved each of the University’s Access and Privacy Coordinator, its Provost, and its external counsel when they asserted (and in the case of the Access and Privacy Coordinator, swore under oath) that all of the records in question involved solicitor-client communications for the purpose of giving or receiving legal advice. The University argued that there was “no factual basis whatsoever for doubting the validity of the privilege claim” and it explained why the material met the Solosky test for solicitor-client privilege.

It argued in its factum before the Supreme Court: The University’s assertion of privilege complied entirely with these requirements. Its sworn evidence and the additional statements from its Provost and its external counsel left no doubt that the records related to confidential communications between University officials and the University’s in-house and external counsel for the purpose of getting legal advice.

Given that JR had adduced no evidence or submissions to raise any doubt about the veracity of the University’s evidence and statements, this left no basis in fact to rebut the presumption that the records were subject to solicitor-client privilege. (at para 99) [Italics in original.] [ 50 ] In response, the Commissioner conceded at the hearing that the University’s claim of privilege complied with the requirements of Alberta civil litigation practice at the time.

Rather than pointing to evidence that contradicted the privilege claim, the Commissioner submitted in her factum that this was a case in which the University had failed or refused to tender evidence sufficient for her to adjudicate the claim, rather than one where opposing persuasive evidence or argument was tendered: ... ...[T]he Commissioner exercises her production powers over information for which solicitor-client privilege is claimed only when the public body fails or refuses to tender evidence sufficient for the Commissioner to adjudicate the claim (as occurred in this case) or when opposing persuasive evidence or argument is tendered. (at para 88) [Emphasis added.] [ 51 ] It was unreasonable for the second delegate to conclude that Ms.

Fernet’s evidence now constituted persuasive evidence opposing the University’s claim of privilege when previously the Commissioner conceded that the evidence did not satisfy this threshold.

As the Commissioner’s delegate, it was not open to the second delegate to come to a different conclusion on this point than that taken by the Commissioner herself. [ 52 ] It also was unreasonable for her to dissect each sentence of the University’s evidence and submissions, the very same evidence and submissions that were before the Supreme Court, and then conclude that the evidence was insufficient to establish the privilege claim and that there may be a body of documents pre-dating the anticipation of litigation, in which the University may have communicated with its in-house counsel about Ms.

Fernet for purposes other than obtaining legal advice. [ 53 ] The Supreme Court reviewed the entirety of the evidence presented by the University and accepted its assertion of privilege. The Supreme Court took a global view of this evidence and found that it satisfied the requirements for asserting privilege according to the law at that time. The Supreme Court further concluded that there was no evidence to the contrary to challenge that assertion.

For this reason, it held that the University had established that the bundle of documents withheld from disclosure were subject to solicitor-client privilege. [ 54 ] The well-established principle of stare decisis (Latin for “let the decision stand” or “to stand by things decided”) and the associated doctrine of precedent require lower courts to abide by the decision of higher courts.

Lower courts may analyze a higher court’s reasons and attempt to distinguish a case based on factual differences, but it was unreasonable for the second delegate to do so in this case since the issue before the Supreme Court involved the same evidence and the same records as those she considered. [ 55 ] Second, the second delegate appears to have accepted that Ms. Fernet’s more recent submissions, namely, that in-house counsel might have given the University business or policy advice during this time period, amounted to evidence to the contrary sufficient to challenge the University’s privilege claim. Ms.

Fernet made the following submissions: The University of Calgary’s in-house counsel wears several hats – as is probably the case with many public institutions covered by

FOIP.

In this instance, the University’s lawyer was involved in functionary policy and procedures that went beyond the scope of the definition of counsel activities: she was sporadically cc’d on regular correspondence; she was a voting member of the Joint Oversight Board of the Qatar project on behalf of the University; she was providing oversight to the FOIP Officer at the University throughout this process; she was also acting as the named “head” of the University through the FOIP process (she held this role until the Provost sent a letter stating that he was “head” of the University – which wasn’t factually true); as well as providing ongoing perfunctory policy advice for the University and its staff on a myriad of issues.

Not all of these activities are covered by solicitor/client privilege. Given her involvement in my personal issues, and given her role on the Board of Directors in Qatar, and given the sequence of events, there should have been a significant body of documents returned through the FOIP process that would show her listed her as recipient or contributor. There wasn’t. Additionally, it seems odd that none of the 100+ pages of documents being withheld were the product of the University’s counsel wearing one of her ‘other hats’. [ 56 ] I accept the University’s position that Ms.

Fernet’s comments are pure speculation and little more than a general statement about the role of in-house counsel. The records at issue in this continued inquiry are the same records that were at issue throughout the first judicial review proceeding and before the Supreme Court. The University claimed solicitor-client privilege over all of these records on the express basis that they consisted communications with its in-house counsel and/or its external counsel, and that all of them related to the giving of legal advice. [ 57 ] The Supreme Court would have been aware that Ms.

Fernet had raised concerns prior to August 2008 that may have led to discussions with its in-house and external counsel. The Court had access to Ms. Fernet’s Statement of Claim in its materials and those pleadings mention that Ms.

Fernet and other directors at the Qatar campus sent a 3-page memo to the Dean on April 3, 2008 outlining serious concerns about the work climate and their working conditions. [ 58 ] The University’s sworn evidence and additional statements from its Provost and external counsel left no doubt in the minds of the judges of the Supreme Court that the records related to confidential communications between University officials and in-house counsel and external counsel for the purposes of giving and receiving legal advice.

It came to this conclusion with the full knowledge of the diversity of roles played by in-house counsel within public institutions and with the awareness that Ms. Fernet’s access request covered the time period beginning in August 2007. [ 59 ] It was unreasonable for the second delegate to conclude that Ms. Fernet’s mere suggestion that the communications between the University and its in-house counsel could be for purposes other than giving or receiving legal advice amounted to “evidence to the contrary”, in the absence of something more substantial.

It was also unreasonable for her to interpret the combined effect of the three sets of reasons at the Supreme Court so narrowly as to conclude that they had left open a window for disclosure of records, “if any”, that consisted of communications between the University and its in-house counsel, that related to Ms. Fernet, but were not for the purposes of giving or receiving legal advice. [ 60 ] I accept the University’s submissions that the doctrine of issue estoppel applies in this case.

The three preconditions for the application of issue estoppel were set out in Danyluk v Ainsworth Technologies Inc. , 2001 SCC 44 at para 25 : (

i) that the same question has been decided; (ii) that the judicial decision which is said to create the estoppel was final; and, (iii) that the parties to the judicial decision or their privies were the same as the parties to the proceedings in which the estoppel is raised or their privies. [ 61 ] The second delegate rejected the application of issue estoppel on the basis that the ultimate question of the validity of the privilege had not been decided since the previous judicial review proceedings arose from an interim phase of the inquiry about the Commissioner’s authority to issue the production order.

Yet the Supreme Court has a wide discretion to give whatever judgment is required in the circumstances, including granting a remedy not requested by either party: Canada (Attorney General) v PHS Community Services Society , 2011 SCC 44 at para 116 . [ 62 ] The Supreme Court could have decided the question of the Commissioner’s authority to order production under

section 56 and then made no further comment about the privilege claim in this case. But it did not do so. In three sets of reasons the Supreme Court commented on the validity of the privilege claim and concluded that there was no reason for the delegate to require production for review purposes in this case.

Issue estoppel and its sister doctrine of res judicata apply “not only to points upon which the court was actually required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time”: L’Hirondelle v Patenaude , 2019 ABQB 39 at para 52 , citing Henderson v Henderson [1843- 1860] All ER Rep 378 at 381-382 . [ 63 ] In the circumstances of this case, it was unreasonable for the second delegate to have parsed the Supreme Court’s reasons so as to reject its findings regarding the validity of the privilege.

Was the whole matter moot? [ 64 ] The University also argues that the Court of Appeal and the Supreme Court both found that this matter was moot. It submits that the second delegate should not have continued with the inquiry for this reason. Specifically, the University argues that the second delegate failed to address the appellate courts’ findings that Ms.

Ryrie’s purpose in making the access request was moot, given its obvious link to her wrongful dismissal litigation and the fact that she had dropped out of the FOIPP process after the litigation ended. [ 65 ] The University points to the Court of Appeal’s comment that “…the dispute between the University and [Ms. Fernet], so far as the process under FOIPPA is concerned, has long been moot, their litigation having concluded three years ago”: University of Calgary

v JR, 2015 ABCA 118 at para 53. It submits that the Supreme Court also drew a connection between the access request and the wrongfuldismissal claim and noted that Ms. Fernet had ended her involvement with the inquiry after her litigation ended: It is noteworthy that the applicant, the former employee, is not a party to the present appeal. Her litigation against the Universityconcluded in 2012 and she has had no involvement in the matter since then...

Therefore, the claim for production is moot at this time. (atpara 9) [66] The University submits that it is evident from these passages that both courts noted a link between Ms. Fernet’s access requestand her wrongful dismissal litigation and that she had ended her involvement in the Commissioner’s inquiry after her litigation ended.The University suggests that once Ms.

Fernet dropped out of the FOIPP process in 2012, the purpose of the access request was spent.The University submits that in the context of an access to information request, this means the request is moot, since the access requesterno longer actively or validly seeks the information at issue. [67] Ms. Fernet contradicts the University’s assertions. In her submissions to the second adjudicator, she explains that her FOIPPrequest pre-dated her court action and should be viewed as her first attempt to gain access to the relevant information.

She also explainswhy she was not involved in the first judicial review: she says that she “was in no position to interpret the will of the Alberta legislaturein creating the enabling legislation for OIPC’s mandate and operations, and solidly supported the OIPC in its own

interpretation of itsactions and authority.” [68] I reject the University’s argument that Ms. Fernet’s interest in the resolution of her access request was spent at the conclusionof her wrongful dismissal action.

Section 3(

a) of FOIPP clearly provides for a dual process and states that the FOIPP process is inaddition to other existing procedures for access to information. There is nothing in FOIPP that requires an applicant seeking access toinformation to establish a purpose or basis for requesting the records. The requester need not explain why she wants the records; she isentitled to seek them simply because they contain personal information about her in the hands of a public body. [69] Furthermore, the second delegate found as a fact that Ms.

Fernet had remained interested in the inquiry and referred to herfurther submissions in support of this conclusion. This factual finding is owed deference. I also note that Ms. Fernet has participated inthe judicial review proceedings before me. [70] The term moot has a specific meaning in law. A matter is moot when, at the time requiring a decision, there is no livecontroversy or concrete dispute, or where the underlying reason for the dispute has disappeared.

In Borowski v Canada (AttorneyGeneral), (SCC), [1989] 1 SCR 342, the Supreme Court explained that a court may decline to decide a case, relyingupon the doctrine of mootness, that raises merely a hypothetical or abstract question. The principle arises when the court’s decision willnot have the effect of resolving some controversy that affects or may affect the rights of the parties. Essentially, if the court’s decisionwill have no practical effect on such rights, then the court will decline to decide it. [71] As far as Ms. Fernet is concerned, there is still a live controversy requiring a decision.

In her view, and that of theCommissioner, the previous judicial review proceedings arose from an interim decision; the first adjudicator had reserved the ultimatequestion regarding disclosure of records until the question of his authority to order production was determined. Ms. Fernet remainsinterested in the records, so on this basis, the matter cannot be said to be moot. [72] The second delegate addressed the mootness comments made by the Court of Appeal and Supreme Court. I find herexplanations to be reasonable.

In particular, I find reasonable her conclusion that the Supreme Court could not have thought the questionof whether the records were privileged to be moot, since that question became the very subject matter of the Court’s pronouncements atissue here. I also find reasonable her conclusion that Ms. Fernet remained interested in the records. Although I have found that there wasno basis for her to order disclosure of the records, as discussed above, this does not mean that the matter was moot, as that term isunderstood in law.

Is the University entitled to its costs? [73] The University asks for its costs on a full indemnity basis. Meanwhile, the Commissioner submits that regardless of theoutcome of this judicial review, there should be no costs award. Furthermore, the Commissioner argues there is no evidence of anyegregious conduct that could justify an award of solicitor client costs. [74] Rule 10.31 grants the court wide discretion in awarding costs, yet the exercise of that discretion must be consistent withestablished principles and practice.

When it comes to administrative tribunals, the general rule is that (absent misconduct orextraordinary circumstances) an administrative tribunal that is involved in proceedings to review its decisions neither receives nor payscosts: Sihota v Edmonton (City), 2013 ABCA 125 at para 4.

The assumption behind this rule is that the tribunal is a necessary andunavoidable party to the proceedings that does not take a position on the outcome; its purpose is to maintain the neutrality of the tribunal,to speak to jurisdiction and standard of review, or to explain the record and the proceedings before it: Sihota at paras 5-6.

When,however, there is no other party to speak to the issues, the tribunal is allowed to expand the scope of its submissions, but its tone mustremain consistent with its role. [75] In Leon’s Furniture Ltd. v Alberta (Information and Privacy Commissioner), 2011 ABCA 94 at para 26, the Court ofAppeal was more explicit. Quoting from an Ontario Court of Appeal decision, the court warned that a tribunal should not be anaggressive partisan adversary.

When this matter was before the Court of Appeal, it noted that when a tribunal takes on a larger, moreadversarial role, it may be liable for costs: …the Commissioner’s entitlement to enter the ring to defend the merits of her delegate’s decision... does not... absent some other reasonfor departing from the default costs rule – mean she should be immune from that rule’s adverse consequences where she is unsuccessful.(at para 55)

[76] The court cited Covenant Health v Alberta (Information and Privacy Commissioner), 2014 ABQB 562 at para 164, whereinWakeling J noted that an administrative tribunal that chose to play a more active role in the proceedings “must carefully considerwhether adverse consequences may attach to its decision to do so.” [77] In Optimax Developments Ltd. v Calgary (City), 2016 ABQB 70 at para 45, Justice Gates, quoting from Brown and Evans’Judicial Review of Administrative Actions in Canada, explained that costs against an administrative tribunal are warranted in a number ofcircumstances, including when the tribunal “cast itself in an adversarial role, acted capriciously in ignoring a clear legal duty, made aquestionable exercise of state power, effectively split the case so as to generate unnecessary litigation, manifested a notable lack ofdiligence, or was the initiator of the litigation in question, or where bias among tribunal members had necessitated a new hearing”. [78] I find that this is an appropriate case to award costs against the Commissioner.

The Commissioner did not take on a neutralrole to speak to jurisdiction and standard of review in these proceedings. Rather, she threw herself into the ring as a strong partisanadvocate of her delegate’s decision. She was a formidable adversary.

For this reason, she cannot escape the cost consequences associatedwith taking on such an adversarial role. [79] Solicitor client costs, which provide full indemnity for all legal fees and disbursements reasonably incurred to the party towhom they are awarded are awarded only in rare and exceptional circumstances, where there has been reprehensible, scandalous oroutrageous conduct by a party: Secure 2013 Group Inc. v Tiger Calcium Services Inc., 2018 ABCA 110 at para 12 & 15.

Generally,solicitor client costs are based on misconduct that occurs during the course of litigation, although this is not an invariable rule.

Theiraward requires a careful examination and analysis of the facts. [80] In FIC Real Estate Fund Ltd. v Phoenix Land Ventures Ltd., 2016 ABCA 303 at para 4, the Alberta Court of Appeal againendorsed the list of examples from Jackson v Trimac Industries Ltd., (1993), (AB KB), 138 AR 161 at 172, settingout when a greater costs award would be appropriate: 1) circumstances constituting blameworthiness in the conduct of the litigation by that party; 2) cases in which justice can only be done by a complete indemnification for costs; 3) where there is evidence that the plaintiff did something to hinder, delay or confuse the litigation, where there was no serious issue offact or law which required these lengthy, expensive proceedings, where the positively misconducting party was “contemptuous” of theaggrieved party in forcing that aggrieved party to exhaust legal proceedings to obtain that which was obviously his; 4) an attempt to deceive the court and defeat justice, an attempt to delay, deceive and defeat justice, a requirement imposed on theplaintiff to prove facts that should have been admitted, thus prolonging the trial, unnecessary adjournments, concealing materialdocuments from the plaintiffs and failing to produce material documents in a timely fashion; 5) where the defendants were guilty of positive misconduct, where others should be deterred from like conduct and the defendants shouldbe penalized beyond the ordinary order of costs; 6) defendants found to be acting fraudulently and in breach of trust; 7) the defendants' fraudulent conduct in inducing a breach of contract and in presenting a deceptive statement of accounts to the court attrial; 8) fraudulent conduct; and 9) an attempt to delay or hinder proceedings, an attempt to deceive or defeat justice, fraud or untrue or scandalous charges. [Citationsomitted] [81] In judicial review proceedings, the history of the prior proceedings may be relevant in determining whether solicitor clientcosts are warranted: Eggertson v Alberta Teachers’ Association, 2003 ABCA 101 at para 8.

Furthermore, a denial of procedural fairnessby the tribunal may be a relevant compelling factor in favour of solicitor client costs: Meleshoko v Alberta, 2013 ABQB 468 at para 35. [82] If the circumstances are not sufficiently egregious to justify an award of solicitor client costs, the discretion afforded the courtenables it to award enhanced costs in some form. In Pharand Ski Corp. v Alberta (1991), (AB KB), 122 AR 395(QB) at para 13, Justice Mason identified the following factors as relevant considerations in making a costs award: (

a) the difficulty and complexity of the issues, (

b) the importance of the case between the parties and/or the community at large, (

c) the length of the trial, (

d) the positions and relationships of the parties and their conduct prior to and during the course of the trial, and (

e) other factors that may affect the fairness of an award of costs. [83] The circumstances of this matter do not give rise to an award of costs on a full indemnity basis. It cannot be said that theCommissioner is guilty of reprehensible, scandalous or outrageous misconduct or indeed misconduct of any kind. [84] However, it must be said that the Commissioner’s conduct, in continuing to review the issue of solicitor-privilege over theUniversity’s records after the very clear language of no less than 3 judges of the Supreme Court, is deserving of sanction. I direct thatcosts on

Schedule C column 2 of the Rules be granted against the Commissioner.

Heard on the 22 nd & 23 rd days of May, 2019. Dated at the City of Calgary, Alberta this 5 th day of October, 2021. K.M. Horner J.C.Q.B.A. Appearances: Michael D.A. Ford, Q.C. Monika B. Gehlen Jonathon Ward DLA Piper (Canada) LLP for the Applicant University of Calgary Glenn Solomon, Q.C. Ryan Phillips Jensen Shawa Solomon Duguid Hawkes LLP for the Respondent Information and Privacy Commissioner Jacqueline Fernet (by telephone) for herself