Bragg Communications Inc. FIRST Appellant And: Persona Communications Inc. Second Appellant And: College of the North ATLANTIC - BOARD OF GOVERNORS Respondent And: Office of the Information v. Privacy Commissioner, 2018 NLSC 42

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Bragg Communications Inc. v. College of the North Atlantic , 2018 NLSC 42 Date : February 28, 2018 Docket : 201701G0369 Between: Bragg Communications Inc. FIRST Appellant And: Persona Communications Inc. Second Appellant And: College of the North ATLANTIC - BOARD OF GOVERNORS Respondent And: Office of the Information and Privacy Commissioner first PROPOSED Intervenor And: Her Majesty THE QUEEN in Right of Newfoundland and Labrador second PROPOSED Intervenor - AND - Docket : 201701G1058 Between:

Bragg Communications Inc. Appellant And: College of the North ATLANTIC – BOARD OF GOVERNORS Respondent And: Office of the Information and Privacy Commissioner first proposed Intervenor And: Her Majesty THE QUEEN in Right of Newfoundland and Labrador second proposed Intervenor - AND - Docket : 201701G1059 BETWEEN: Persona Communications Inc. Appellant And: College of the North ATLANTIC – BOARD OF GOVERNORS Respondent And: Office of the Information and Privacy Commissioner first PROPOSED Intervenor And: Her Majesty THE QUEEN in Right of Newfoundland and Labrador second PROPOSED Intervenor

Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: February 26, 2018

Summary : The Applicant sought an Order that the First and Second Proposed Intervenors be prohibited from intervening in an appeal from the decision of the Respondent to disclose certain records. In the alternative, the Applicant requests that the participation of the proposed Intervenors be limited in scope to arguments of public policy and statutory

interpretation. Appearances: Erin E.E. Best Appearing on behalf of the Appellants J. Alexander Templeton Appearing on behalf of the Respondent Andrew A. Fitzgerald Appearing on behalf of the First Proposed Intervenor Jessica R. Pynn Appearing on behalf of the Second Proposed Intervenor Authorities Cited: CASES CONSIDERED: Geophysical Service Incorporated v. Martin , 2015 NLCA 36 STATUTES CONSIDERED: Access to Information and Protection of Privacy Act, 2015, S.N.L. 2015, c. A-1.2 RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT Khaladkar, J. : INTRODUCTION [ 1 ] The First and Second Appellants (hereinafter collectively “Eastlink”) have objected to the Respondent releasing certain information that Eastlink says would harm its business interests and increase cyber security risks, contrary to the Access to Information and Protection of Privacy Act, 2015 , S.N.L. 2015, c. A-1.2 (hereinafter “ ATIPPA ”).

[ 2 ] Eastlink has pursued a remedy, as of right, in the Supreme Court of Newfoundland and Labrador pursuant to

section 53 of ATIPPA . [ 3 ] The Office of the Information and Privacy Commissioner and the Minister of Justice and Public Safety have both filed notice, pursuant to section 56(3) of ATIPPA , of their intention to intervene. [ 4 ] At issue in this Application are the ability of the proposed Intervenors to intervene and, if their intervention is sanctioned, whether the Court ought to impose any limitation on the scope of their intervention. APPLICANT’S ARGUMENT [ 5 ] The Applicant says that: With respect to the Office of the Information and Privacy Commissioner’s notice of intervention: 1. The Commissioner does not have an unlimited right to intervene in any appeal.

Section 57 of ATIPPA allows the Court to apply the expedited trial rules of the Supreme Court to an appeal under

section 53 and, therefore, Rule 7.05(3) should be invoked if, as the Applicant says, the intervention would unduly delay or prejudice the adjudication. 3. The Commissioner’s decision-making is weighted against third parties and his intervention could prejudice the Applicant. 4. If the Commissioner is allowed to intervene, the scope of his intervention should be limited. With respect to the Minister’s notice of intervention: 1. The Minister’s intervention was not timely and, as a result, should be rejected by the Court. 2.

The Minister should not be able to bolster the submissions of the Office of the Information and Privacy Commissioner. 3. There is no need for the Minister’s intervention on the merits since it would disrupt the adversarial balance on the appeals and would prejudice the Applicant. THE INTERVENORS’ ARGUMENT [ 6 ] The Intervenors say that: 1. The Commissioner is an officer of the House of Assembly. In cases such as this, it is not the Commissioner’s function to advocate for the release of records but, rather, to assist the Court since he is the only neutral party before the Court. 2.

This is the first case of its nature to come before the Court and, as such, the Commissioner has an interest in intervening and making representations. 3. The Commissioner is allowed to intervene as of right. His participation is not circumscribed by the Court’s discretion to allow or disallow participation. 4. ATIPPA is

an Act of the Legislature and, as such, trumps the Rules of Court – which only have the status of Regulations. 5. There is no evidence of mala fides in the Commissioner’s proposed intervention and, even if there were, the Commissioner would still be able to participate as of right.

6. The case of Geophysical Service Incorporated v. Martin , 2015 NLCA 36 , is binding on this Court and authority for the proposition that intervention by the Minister is allowed at any stage of the proceedings until resolution. 7. The Minister agrees with the Commissioner’s position with respect to intervention and adds that he has not engendered any unreasonable delay as a result of his participation. 8. The Minister says that there is no evidence of prejudice. The documents in question have not been lost or released. 9.

The Minister says that if he and the Commissioner are allowed to intervene, they should be allowed to make whatever representations they wish. ANALYSIS [ 7 ] Section 56(3) states as follows: 56.

(3) The minister responsible for this Act, the commissioner, the applicant or a third party may intervene as a party to an appeal under this Division by filing a notice to that effect with the Trial Division. [My emphasis added] [ 8 ] The legislation does not contemplate having to file an application or obtain leave of the Court to become a participant. The Minister, Commissioner and others are allowed to intervene as of right. [ 9 ] While the Geophysical case concerned itself with the involvement of the Commissioner, the ratio decidendi of that case is equally applicable to the involvement of the Minister.

Barry, J. said, at paragraph 13 of that decision as follows: … I believe it reasonable to infer that the Legislature intended the Commissioner to have the right to intervene at any stage until the proceedings have been terminated or finally resolved. [ 10 ] Barry, J. went on to say, at paragraph 17, of his decision: The Commissioner is an independent statutory officer of the House of Assembly of Newfoundland and Labrador, responsible for the daily administration of the ATIPPA .

His duties and responsibilities include conducting statutory reviews of decisions of public bodies under section 43(1) of the ATIPPA and investigating complaints about privacy and other matters pertaining to the ATIPPA pursuant to

section 44 . Clearly, in performing this statutory mandate the Commissioner has developed an expertise in the operation and administration of access to information law in the Province. [ 11 ] The decision of Barry, J. is binding on this Court. [ 12 ] I would add that the Minister of Justice and Public Safety is the minister responsible for the provincial legislation that oversees public access to information gathered by public bodies.

As such, he has a vested interest in ensuring that, in proceedings such as the instant matter, the Province’s public policy interests are put before the Court – particularly in matters that could be characterized as precedential. [ 13 ] I do not see how the participation of the Commissioner or the Minister could unduly delay the proceedings or cause prejudice to the Applicant. The impugned records have not been released to anyone pending the decision of this Court. Both the Minister and the Commissioner have undertaken to proceed in a timely fashion.

Their intervention need not be burdensome to the parties and is not likely to engender any injustices.

While the Applicant argued that the adversarial balance would be lost if Intervenors were allowed to weigh in on the issues, the Court is quite capable of sorting the “wheat from the chaff” and ensuring that only those arguments that are cogent and compelling come to the fore – regardless of how many times their opposite may have been stated. [ 14 ] It was urged upon me by the Applicants that the intervention be limited in scope in the same manner that Nalcor made the corresponding argument in the Geophysical case.

In that case, Barry, J. was satisfied that those concerns could be met by the Court retaining discretion to determine the scope of the issues to be addressed. The same ought to be done here.

SUMMARY AND DISPOSITION [ 15 ] In

summary: 1. The Minister and the Commissioner have the right to intervene under section 56(3) of the ATIPPA . 2. There shall be no limit placed on the scope of the Minister and Commissioner’s participation. However, the Court reserves the right to determine the scope of issues to be addressed and to provide direction with respect to the timeliness of any actions to be taken.

3. Each party shall bear its own costs. _____________________________ Vikas Khaladkar Justice