Beverage Industry association of Newfoundland v. Labrador, 2019 NLSC 222

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Beverage Industry Association of Newfoundland and Labrador v.

Newfoundland and Labrador (Minister of Finance) , 2019 NLSC 222 Date : December 11, 2019 Docket : 201801G7018 Between: Beverage Industry association of Newfoundland and Labrador INC., as Representative to its members who are Third Parties to a Request as defined under the Access to Information and Protection of Privacy Act, 2015 Applicant And: Her Majesty in Right of Newfoundland and Labrador, AS REPRESENTED BY THE MINISTER OF FINANCE Respondent AND: DONOVAN MOLLOY, IN HIS CAPACITY AS THE INFORMATION AND PRIVACY COMMISSIONER FOR THE PROVINCE OF NEWFOUNDLAND AND LABRADOR INTERVENOR Before: Justice Valerie L.

Marshall Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: October 10, 2019 Appearances: Alexandra Kindervater Appearing on behalf of the Applicant

David Rodgers Appearing on behalf of the Respondent Andrew Fitzgerald Appearing on behalf of the Intervenor Authorities Cited: CASES CONSIDERED: Atlantic Lottery Corp. v. Newfoundland and Labrador (Minister of Finance), 2018 NLSC 133; Merck FrosstCanada Ltd. v. Canada (Health), 2012 SCC 3; Corporate Express Canada Inc. v. Memorial University of Newfoundland, 2015 NLCA52; Archean Resources Ltd. v. Newfoundland (Minister of Finance), 2002 NFCA 43; Aylward v. Law Society of Newfoundland andLabrador, 2013 NLCA 68; Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11; Knight v.

Indian Head School DivisionNo. 19, (SCC), [1990] 1 S.C.R. 653; Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817. STATUTES CONSIDERED: Access to Information and Protection of Privacy Act, 2015, S.N.L. 2015, c. A-1.2; Access to Informationand Protection of Privacy Act, S.N.L. 2002, c. A-1.1. REASONS FOR JUDGMENT Marshall, J.: INTRODUCTION [1] The Applicant, the Beverage Industry Association of Newfoundland and Labrador Inc. (the “BIA”), represents about 250operators of video lottery terminals (“VLTs”), in this Province.

The BIA appealed the decision of the Respondent, the Department ofFinance (the “Department”), to disclose information relating to the operation of and revenues from VLTs in our Province. TheInformation and Privacy Commissioner (the “Commissioner”) is the Intervenor in this application. BACKGROUND AND LEGISLATION [2] The Access to Information and Protection of Privacy Act, 2015, S.N.L. 2015, c. A-1.2 (the “Act”) provides a mechanism forpersons seeking access to records from public bodies. Sections 3(1) and (2) of the Act set forth the purpose of the Act, and how thepurpose is to be achieved.

Generally, the purpose is to facilitate democracy by increasing transparency in government through publicaccess to information; and to balance the privacy rights of individuals with the right of the public to have access to information. [3] There are exceptions to public access to information, identified by sections 27 to 41 of the Act. Specific to this case is section39 of the Act which states, as follows: 39.

(1) The head of a public body shall refuse to disclose to an applicant information (

a) that would reveal (

i) trade secrets of a third party, or (ii) commercial, financial, labour relations, scientific or technical information of a third party; (

b) that is supplied, implicitly or explicitly, in confidence; and (

c) the disclosure of which could reasonably be expected to (

i) harm significantly the competitive position or interfere significantly with the negotiating position of the third party, (ii) result in similar information no longer being supplied to the public body when it is in the public interest that similar informationcontinue to be supplied, (iii) result in undue financial loss or gain to any person, or (iv) reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointedto resolve or inquire into a labour relations dispute.

(2) The head of a public body shall refuse to disclose to an applicant information that was obtained on a tax return, gathered for the purpose of determining tax liability or collecting a tax, or royalty information submitted on royalty returns, except where that information is non-identifying aggregate royalty information. (3) Subsections (1) and (2) do not apply where (

a) the third party consents to the disclosure; or (

b) the information is in a record that is in the custody or control of the Provincial Archives of Newfoundland and Labrador or the archives of a public body and that has been in existence for 50 years or more. [ 4 ] In this matter, on or about October 13, 2016, an unidentified party (the “ ATIPPA Applicant”), made a request for information to the Department of Finance (the “Department”) under the A ct , requesting as follows: “Correspondence, in any and all formats, including paper and electronic, from the last two years between the Department of Finance and the Atlantic Lottery Corporation relating to the operation of and revenue from video lottery terminals (VLTs) in Newfoundland and Labrador.” [ 5 ] The information found pursuant to the request included an email exchange between officials in the Department, and the Atlantic Lottery Corporation (the “ALC”).

That exchange included a table which had the following information with respect to all VLT operators in the Province: the retailer operating name; the location of the operation; and the total net revenue generated by VLTs operating from each retailer location for part of 2016 (the “Information”). [ 6 ] Pursuant to

section 19 of the Act , the Department provided notice to the ALC that the Information may be released. Section 19(1) of the Act states, as follows: 19.

(1) Where the head of a public body intends to grant access to a record or part of a record that the head has reason to believe contains information that might be excepted from disclosure under

section 39 or 40 , the head shall make every reasonable effort to notify the third party. [ 7 ]

Section 2 (cc) of the Act defines a “third party” as follows: 2 . … (cc) "third party", in relation to a request for access to a record or for correction of personal information, means a person or group of persons other than (

i) the person who made the request, or (ii) a public body [ 8 ] The Department identified the ALC as a third party. Therefore, in accordance with section 19(1) of the Act , the Department had “reason to believe” that the responsive records might contain information excepted from disclosure under sections 39 or 40 of the Act . However, the VLT operators, and the BIA, were not identified as third parties; and they were not provided with notice under section 19(1) . [ 9 ] The ALC informed the Department that it did not agree to the disclosure of the Information.

Nevertheless, the record suggests that the Department did a line by line review of the Information, and ultimately decided to grant access. The Department informed the ALC of this decision by correspondence dated November 9, 2016. [ 10 ] At this juncture, pursuant to section 19(5) of the Act , the ALC had two avenues of pursuit. First, the ALC could have appealed the Department’s decision directly to the Court under

section 53 of the Act . Section 53(1) of the Act states, as follows: 53.

(1) A third party informed under

section 19 of a decision of the head of a public body to grant access to a record or part of a record in response to a request may appeal the decision directly to the Trial Division. [ 11 ] Section 53(1) of the Act states that a third party who is “informed under

section 19 of a decision of the head of a public body to grant access to a record or part of a record in response to a request” may appeal to the Court the decision to disclose. Because the VLT operators were never “informed under

section 19 ”, the Department and the Intervenor submit that the BIA has no standing to bring this appeal under section 53(1) . In other words, their position is that because the VLT operators were not initially notified by the Department under section 19(1), then the VLT operators (and the BIA) have no statutory right of appeal under section 53(1) of the Act . [ 12 ] In any event, the ALC chose not to appeal under

section 53 of the Act . Rather, the ALC chose the second avenue of pursuit as described in section 19(5) of the Act , which entails filing a complaint with the Commissioner under

section 42 of the Act . [ 13 ] As with an appeal under section 53(1) of the Act , in order for a third party to file a complaint with the Commissioner under

section 42 , the third party must have been “informed under

section 19” of the Department’s decision to disclose. Section 42(3) of the Act states:

(3) A third party informed under

section 19 of a decision of the head of a public body to grant access to a record or part of a record in response to a request may file a complaint with the commissioner respecting that decision. [ 14 ] Pursuant to

section 42 of the Act , the ALC filed a complaint with the Commissioner, requesting that the Information be withheld. In accordance with the Act , the Commissioner undertook an investigation of the ALC’s complaint. [ 15 ] Section 43(3) of the Act refers to the “burden of proof” in the investigation as resting with the third party (being the ALC in this case), to establish that there was no right of access to the Information. Section 43(3) states this, as follows: 43

(3) On an investigation of a complaint from a decision to give an applicant access to a record or part of a record containing information, other than personal information, that relates to a third party, the burden is on the third party to prove that the applicant has no right of access to the record or part of the record. [ 16 ] Section 44(1) of the Act refers to the requirement that the Commissioner “notify the parties to the complaint” for the purpose of their making representations, and states, as follows: 44

(1) The commissioner shall notify the parties to the complaint and advise them that they have 10 business days from the date of notification to make representations to the commissioner. [ 17 ] In this case, the Commissioner did not notify the VLT operators. The VLT operators were not “parties to the complaint”. Rather, the parties to the complaint were the Department and the ALC. [ 18 ] Because the VLT operators were not notified by the Commissioner, the VLT operators did not make representations to the Commissioner under section 44(2) of the Act , which states, as follows: 44

(2) The parties to the complaint may, not later than 10 business days after notification of the complaint, make a representation to the commissioner in accordance with

section 96 . [ 19 ] As will be discussed in the analysis, the Commissioner appears to have the power to allow representations from a “person”; not just the “parties to the complaint”. Section 96(1) of the Act states, as follows: 96

(1) During an investigation, the commissioner may give a person an opportunity to make a representation. [ 20 ] Therefore, even though the burden of proof rested with the ALC, the Commissioner could have given the VLT operators the opportunity to make representations. In this case, the Commissioner conducted the investigation without inviting and giving the VLT operators an opportunity to make a representation. Rather, the Commissioner proceeded to consider only submissions from the Department and the ALC. [ 21 ] The Commissioner ultimately concluded that the ALC had not met the test for exemption under sections 39 or 40 of the Act . Pursuant to

section 47 of the Act , the Commissioner recommended that the Information be disclosed by the Department.

Section 47 of the Act states, as follows: 47. On completing an investigation, the commissioner may recommend that (

a) the head of the public body grant or refuse access to the record or part of the record; (

b) the head of the public body reconsider its decision to refuse access to the record or part of the record; (

c) the head of the public body either make or not make the requested correction to personal information; and (

d) other improvements for access to information be made within the public body. [ 22 ] Under

section 48 of the Act , the Commissioner is required to prepare a report containing his findings and recommendations; and he sends a copy of his report to the complainant, the head of the public body, and a third party notified under

section 44 of the Act . Those third parties notified under

section 44 are included as the “parties to the complaint”. Again, in this matter the VLT operators were not “parties to the complaint” because they were never initially notified by the Department, under section 19(1). Therefore, they were not sent a copy of the Commissioner’s report. [ 23 ] In accordance with

section 49 of the Act , the Department then decides to comply, or not, with the Commissioner’s recommendations. Notice of that second decision by the Department is to be given to persons who were sent a copy of the Commissioner’s report. In this case, the Department decided to comply; and therefore forwarded notice to the ALC, indicating that it agreed with the Commissioner’s recommendations respecting sections 39 and 40 of the Act .

Section 49 of the Act states, as follows: 49

(1) The head of a public body shall, not later than 10 business days after receiving a recommendation of the commissioner, (

a) decide whether or not to comply with the recommendation in whole or in part; and (

b) give written notice of his or her decision to the commissioner and a person who was sent a copy of the report.

(2) Where the head of the public body does not give written notice within the time required by subsection (1), the head of the public body is considered to have agreed to comply with the recommendation of the commissioner.

(3) The written notice shall include notice of the right (

a) of an applicant or third party to appeal under

section 54 to the Trial Division and of the time limit for an appeal; or (

b) of the commissioner to file an order with the Trial Division in one of ( the circumstances referred to in subsection 51 (1). [ 24 ] Again, the Department did not notify the VLT operators of this decision. [ 25 ]

Section 54 of the Act granted to the ALC a right of appeal to the Court of the Department’s second decision.

Section 54 states, as follows: 54 An applicant or a third party may, not later than 10 business days after receipt of a decision of the head of the public body under

section 49 , commence an appeal in the Trial Division of the head’s decision to (

a) grant or refuse access to the record or part of the record; or (

b) not make the requested correction to personal information. [ 26 ] Under

section 54 of the Act , a right of appeal is granted to a third party who has received the Department’s decision, under

section 49 . As stated, the Department’s decision is received by persons who were sent a copy of the Commissioner’s report. The third party who received a copy of the Commissioner’s report had been notified first under section 19(1), and then under

section 44 . The ALC therefore had a statutory right of appeal under

section 54. However, because the VLT operators were not notified under section 19(1), the Department and the Commissioner’s position is that the VLT operators (and hence the BIA) have no standing to bring this appeal under

section 54 of the Act . [ 27 ]

Section 60 of the Act describes the Court’s powers on the hearing of an appeal.

Section 60 states, as follows: 60(1) On hearing an appeal the Trial Division may (

a) where it determines that the head of the public body is authorized to refuse access to a record under this Part and, where applicable, it has not been clearly demonstrated that the public interest in disclosure of the information outweighs the reason for the exception, dismiss the appeal; (

b) where it determines that the head of the public body is required to refuse access to a record under this Part, dismiss the appeal; or (

c) where it determines that the head is not authorized or required to refuse access to all or part of a record under this Part, (

i) order the head of the public body to give the applicant access to all or part of the record, and (ii) make an order that the court considers appropriate.

(2) Where the Trial Division finds that a record or part of a record falls within an exception to access under this Act and, where applicable, it has not been clearly demonstrated that the public interest in disclosure of the information outweighs the reason for the exception, the court shall not order the head to give the applicant access to that record or part of it, regardless of whether the exception requires or merely authorizes the head to refuse access.

(3) Where the Trial Division finds that to do so would be in accordance with this Act or the regulations, it may order that personal information be corrected and the manner in which it is to be corrected. [ 28 ] Under

section 54 of the Act , the ALC filed an appeal of the Department’s decision to disclose the Information. The basis of that appeal was the potential harm the release of information could impose on the business interests of VLT operators, without their having been given notice of the ATIPPA request, and without their having had the opportunity to argue against release of the Information. [ 29 ] In a decision dated June 19, 2018, being Atlantic Lottery Corp. v. Newfoundland and Labrador (Minister of Finance) , 2018 NLSC 133 (“ ALC v.

NL ”), Justice Orsborn dismissed the ALC’s appeal based on the ALC having no standing; and the absence of a statutory appeal, or statutory relief for a failure to give notice. At paragraph 38 of his decision, he concluded the appeal must fail because: 38 I have concluded this appeal must fail because: (

i) ALC has no standing to bring an appeal on behalf of its retailers; (ii) the Act provides specific and limited grounds for appeal - a failure to give notice is not a specified ground; and (iii) (related to sub(ii)), there is

no statutory relief for a failure to give notice. [ 30 ] On or about late August, 2018, the VLT operators became aware that the Department planned to disclose the Information revealed pursuant to the ATIPPA request. On October 15, 2018 the BIA filed this originating application appealing the Department’s decision, and seeking an order pursuant to

section 60 of the Act that the VLT operators’ names, locations, and total net revenue not be disclosed. [ 31 ] The BIA takes the position that the Information should not be disclosed by the Department because it is exempt information under section 39(1) of the Act .

More specifically, the BIA submitted that disclosure of the Information would reveal “commercial, financial, labour relations, scientific or technical information of a third party”, pursuant to section 39(1)(a)(ii); information which was “supplied, implicitly or explicitly, in confidence”, pursuant to section 39(1)(b); information which would “reasonably be expected to harm significantly the competitive position or interfere significantly with a negotiating position of the third party”, pursuant to section 39(1)(c)(i); and information which would “result in undue financial loss or gain to” the VLT operators, pursuant to section 39(1) (c)(iii) of the Act . [ 32 ] The relief sought by the BIA was initially pursuant to the statutory right of appeal provisions of the Act .

As stated, the Department’s position was that statutory relief was only available to a third party initially given notice under section 19(1) of the Act ; and because the VLT operators were not given notice, they (and the BIA) have no standing to bring this appeal. [ 33 ] On October 29, 2018 the Commissioner filed a notice of intervention to participate in this matter, as permitted by section 56(3) of the Act . [ 34 ] On November 1, 2018, pursuant to a consent order, the parties agreed that the Department would not release any records related to VLT operators’ names, locations and revenues, pending disposition of this matter. [ 35 ] At the Court’s request, a week prior to the scheduled hearing of this matter, Counsel for all parties appeared in Court.

In response to inquiries from the Court, Counsel agreed to provide further written submissions respecting whether judicial review was available in the circumstances of the case. The matter was set over to allow time for filing. ISSUES [ 36 ] The first issue to be determined is whether the BIA has standing to appeal under the Act . If not, then the next issue is whether judicial review is available to the BIA. If judicial review is available, then the further issue becomes whether the BIA is entitled to any relief.

ANALYSIS [ 37 ] The Act sets forth two avenues for a third party to appeal the Department’s decision to provide access to the Information. The first avenue is by direct appeal to the Court under

section 53 . That occurs after the Department has provided notice under section 19(1) to the third party; and if the third party so notified chooses to appeal directly to the Court, without first engaging the Commissioner for the purposes of conducting an investigation. [ 38 ] The second avenue of appeal for a third party follows the filing of a complaint with the Commissioner. More specifically, if the third party files a complaint after receiving notice under section 19(1) of the Act , then the Commissioner investigates the complaint and makes a determination.

That determination is in the form of a recommendation to the Department. The Department then makes a second decision, respecting access, in light of the Commissioner’s recommendation; and the Department then notifies the third party of that second decision. The third party notified of that second decision is one who received the Commissioner’s report; the Commissioner’s report is received by a third party who was notified under

section 44 of the Act , and who is one of the “parties to the complaint”. In this case, the “parties to the complaint” included the third party who had been initially notified by the Department under section 19(1), being the ALC. Under

section 54 of the Act , that third party may then appeal the Department’s second decision to this Court, 10 business days following receipt of it. [ 39 ] After considering the legislation, and the submissions of all Counsel, I agree with the position of the Department, and the Commissioner, that the BIA clearly has no standing to appeal under the Act . A third party’s statutory right of appeal emanates from sections 53 and 54 of the Act . The

section 53 right of appeal rests only with a third party who was given notice under section 19(1) of the Act . The

section 54 right of appeal rests with a third party who received the Department’s second decision under

section 49 of the Act . As suggested above, the third party receiving the Department’s second decision was earlier notified by the Department under section 19(1) of the Act ; in this matter the ALC was the only third party so notified. [ 40 ] In this case, the VLT operators and the BIA were never notified by the Department under section 19(1) of the Act . As a result, the VLT operators never had a statutory right of appeal under

section 53 of the Act . Further, the VLT operators were not notified of the Department’s decision under

section 49 of the Act , because they were not initially notified under section 19(1) of the Act . Therefore, the VLT operators, and the BIA, do not have a right of appeal under

section 54 of the Act . [ 41 ] Consequently, in accordance with the Act , when the head of a public body initially decides that a third party need not receive notice under section 19(1) of the Act , then that third party does not have any statutory right of appeal under the legislation. As a result, there is a significant responsibility placed upon the head of a public body to determine who should be informed of the intention to grant access to information. [ 42 ] In ALC v.

NL , Justice Orsborn discussed this responsibility under section 19(1) of the Act , in reference to the Supreme Court of Canada’s decision in Merck Frosst Canada Ltd. v. Canada (Health) , 2012 SCC 3 . I agree with Justice Orsborn’s comments at paragraph 41 and 42 of ALC v. NL , where he stated as follows:

41 In Merck , Cromwell J. considered in some detail the responsibility placed on the head of a public body when in receipt of a request for information. Although his views on the point were not strictly necessary for the decision in Merck , it is clear that they were carefully considered comments given with the intention of providing the guidance of the Supreme Court to those interpreting and applying freedom of information legislation. 42 The language of the statute under consideration in Merck is substantially similar to that in

section 19; I consider Merck to be binding authority on the point. [ 43 ] Further, as noted by Justice Orsborn, in Merck Justice Cromwell stated there is a “fairly low threshold to trigger the obligation to give notice” (at paragraph 63 of Merck ); and correspondingly “a high threshold for disclosure without notice” (at paragraph 72 of Merck ). [ 44 ] Justice Orsborn further commented as follows, at paragraphs 48 to 55 of ALC v. NL : 48 The obligation on the head is clear.

Fulfilling it will not be easy, and I read into Merck the admonition that, when in doubt on the issue of 'reason to believe,' the head should err on the side of caution and give notice. 49 Merck does not directly address one issue raised by this appeal; i.e. whether or not the obligation to review for potential exceptions extends to third parties (here, the retailers) identified in information provided by the 'primary' third party (here, ALC). 50 Based upon the approach to notice expressed in Merck , a remedial

interpretation of

section 19 in the context of the Act as a whole, the potential for harm from disclosure, and the Act 's limitation on a civil remedy, I consider that the obligation of the head to disclose extends beyond the primary third party to any other party reasonably identifiable in the requested information. 51 The definition of third party is all encompassing and it would be contrary to the "protection from harm" purpose expressed in paragraph 3(2)(iii) to limit the identification of third parties to only the person that provided (here, ALC) or authored the information under review by the head. 52 Thus, a head must take reasonable care to determine whether the requested information identifies other persons whose information is disclosed, either directly or by reasonable inference in the requested information. 53 In the present case, although I have not seen the requested information, it appears from the record that the retailers would be identified as potential third parties. 54 Having identified potential third parties in what I would call a liberal manner, it is then the responsibility of the head to assess whether there is reason to believe that the information of such parties is "of" a potential third party and, if so, if there is reason to believe the information might be excepted from disclosure.

This assessment would determine whether or not the low threshold for giving notice has been met. 55 I hasten to add that there is no evidence that an assessment of this nature was not done in this case. I offer these views on the consideration of notice issue because of the novelty of the issue and to respond to the submissions of counsel. [ 45 ] As suggested by Justice Orsborn at paragraph 53 of ALC v.

NL , the VLT operators should have been identified as potential third parties by the Department. [ 46 ] The record does not reveal the decision making process engaged by the Department when identifying who to notify under section 19(1) of the Act . The record shows notice was given to the ALC under section 19(1) , by email dated November 2, 2016; and the response email from the ALC dated November 7, 2016 indicates that the ALC disagreed with disclosure. A further response from the Department dated November 9, 2016, indicated that a “line-by-line review” was undertaken of the requested records. Specific to the

section 39 concerns, the November 9, 2016 correspondence further stated that: “The Department was not able to satisfy all three conditions and therefore has not severed any related information pursuant to

section 39 of the ATIPP Act .” [ 47 ] The record therefore does not clearly explain the Department’s rationale for not providing notice to the VLT operators. The ALC subsequently filed its complaint with the Commissioner. [ 48 ] The Respondent and the Commissioner both referred the Court to Justice Orsborn’s comments at paragraph 54 of ALC v. NL , and submitted that notice by the Department to the VLT operators was not necessary because the Information was clearly not “of” the VLT operators. Therefore,

section 39 could not be engaged, and notice should not have been given. According to the Respondent and the Commissioner, the Information is not “of” the VLT operators because the Information was described by the ALC (in its written submissions to the Commissioner) as its exclusive property. Therefore the Information cannot be “of” the VLT operators, as they do not have a proprietary interest in the Information.

[ 49 ] Indeed, this was the primary rationale of the Commissioner in his report responding to the ALC’s complaint respecting the application of

section 39 of the Act . The Commissioner’s report explains why

section 39 did not impact his decision to disclose the Information. He stated as follows, at paragraphs 15 to 23 of his report dated February 8, 2017: [15] The “Net Revenue” information is not created or provided by the establishment in which the VLT’s are located. It is created electronically by the operations of each individual VLT, and transmitted directly and securely by high-speed internet connection to the Third Party. It cannot be altered in any way by the retailer. This data is assembled and processed by the financial software of the Third Party to produce records such as the “Net Revenue” table.

Although each VLT can produce a “cash in and cash out” printout that is available to the retailer under the terms of the contract, the information does not belong to the retailer. The evidence provided to our Office is conclusive that the information belongs to the Third Party. [16] The first part of

section 39 provides that to meet the test, the information in question must be “…commercial, financial, labour relations, scientific or technical information of a third party.” I conclude that “of” means belonging to a third party – it refers to a proprietary interest of some kind in the information.

Section 40, by contrast, is concerned with personal information, which is defined by

section 2 as “information about an identifiable individual.” The term “about” means that the information is descriptive of the individual in some way and does not necessarily belong to the individual. [17] Access to information legislation in other Canadian jurisdictions uses similar language to that in the ATIPPA, 2015 . Nova Scotia’s Freedom of Information and Protection of Privacy Act , at

section 21 , contains the identically worded provision “…commercial, financial, labour relations, scientific or technical information of a third party.” In a recent decision, Review Report 16-10 , the Nova Scotia Information and Privacy Commissioner decided that the word “of” means “having a claim to a proprietary interest in the information.” [18]

Section 16 of Alberta’s Freedom of Information and Protection of Privacy Act also contains an identical provision, and in that jurisdiction the expression “of the third party” is also taken to refer to “… proprietary information, in the sense that it could be said to belong to a third party.” (See Alberta Order F2015-22 ). [19] On the evidence, the retailers whose establishments are referred to in the “Net Revenue” table do not have a proprietary interest in the information. Therefore

section 39 cannot be applied so as to claim that the disclosure of that information could be harmful to the business interests of the retailers. This exception is only relevant in considering whether there is any requirement to protect information belonging to the Third Party. [20] I have concluded that the “net revenue” information is information “of the Third Party” and it is clearly financial or commercial information, so the first part of the test has been met. [21] It also appears to have been “supplied” by the Third Party to the Department, within the meaning of the second part of the

section 39 test. However, the Third Party did not provide any evidence of the circumstances under which the information was supplied, to establish whether it was supplied in confidence. Therefore, as there is no other evidence that might support that finding, I conclude that the second part of the test has not been met. [22] Finally, there is no evidence that there is any likelihood of harm to the Third Party if the information were to be disclosed.

The Third Party argues that the information is a highly valuable corporate asset, and disclosure of the information would provide a “competitive advantage to other interested parties pursuing similar business opportunities…” While the information is clearly a corporate asset, in the sense that it is one of the Third Party’s core sources of revenue information, in circumstances where the Third Party has a statutory monopoly on the business of placing and operating VLT’s in the province and in the absence of evidence of likely harm, the assertion of harm is simply speculative. [23] As all three parts of the

section 39 test have not been met, the record must be disclosed. [ 50 ] The main finding of the Commissioner which pertains to this application, is the finding that the ‘net revenue’ information does not belong to the VLT operators. Rather, he finds that the words “of a third party” in section 39(1) (a)(ii) of the Act are to be interpreted as meaning “belonging to” a third party.

The Commissioner therefore found that: “section 39 cannot be applied so as to claim that the disclosure of that information could be harmful to the business interests of the retailers” (paragraph 19 of the Commissioner’s decision). [ 51 ] Under the Act , the Commissioner’s decision is described as a recommendation to the Department. The Department agreed with the Commissioner that

section 39 of the Act was not engaged because the VLT operators do not own the Information. According to the Department’s submissions, the VLT operators would therefore not have been in a position to argue that there was a

section 39 exception to disclosure. In turn, there was no reason to give notice to the VLT operators under section 19(1) .

[ 52 ] The Department’s decision and the Commissioner’s findings were reached without any notice to, or representations from, the VLT operators; even though the prospect of financial loss to retailers was squarely put to the Commissioner throughout the ALC’s written representations to the Commissioner. Rather, submissions to the Commissioner were received only from the ALC, and the Department. [ 53 ] In his reasons, the Commissioner referred to decisions of Commissioners in other provinces supporting the position that the language in

section 39 requires that the information be “of a third party”; and that this suggests that the third party must have a proprietary interest in that information. Further, in Court, the Department referred to Corporate Express Canada Inc. v. Memorial University of Newfoundland , 2015 NLCA 52 , in which the Court of Appeal discussed section 27(1) (

b) of the Access to Information and Protection of Privacy Act , S.N.L. 2002, c. A-1.1 . That legislation has since been repealed and replaced by the Act . However, the Court of Appeal’s

interpretation of that provision remains relevant to

section 39 of the Act . The Court of Appeal stated in the Corporate Express decision at paragraph 26, as follows: [26] Whether the requested information is the confidential information of a third party requires that the contents of the requested information be examined with a view to identifying the origin and ownership of the information. This is an essential part of the test for exemption set out in section 27(1)(b), along with whether the information was supplied by the third party explicitly or implicitly in confidence and whether it was treated consistently as confidential information by the third party.

Application of the test involves fact finding, the application of legal principles and

interpretation of the legislative provision. It is an objective determination, made in the context of the purpose of the legislation. Accordingly, I do not agree with Staples that the Judge erred in saying that the test under section 27(1) (

b) is an objective one. [ 54 ] Similarly, Justice Orsborn stated in Atlantic Lottery Corp. v. Newfoundland and Labrador (Minister of Finance) at paragraph 34 , as follows: 34 It is not necessary for the disposition of this appeal to determine whether the NR information is owned by the retailers. The case law is clear that to come within the

section 39 exception the information must be "of a third party" -- i.e. proprietary information of a third party. In its submission to the Commission, as already noted, ALC wrote that "the information that is being requested is proprietary information belonging exclusively to ALC that is deemed to be a highly valuable and confidential corporate asset of ALC..." In the face of this assertion, it would be difficult to maintain that the information is owned by the retailers; nonetheless, I express no final opinion on that matter. [ 55 ] Based on these authorities, I conclude that the words “of a third party” in

section 39 of the Act do suggest that the third party must have some form of a proprietary interest in the information. However, in my view, this does not mean the information need be solely owned by the third party. [ 56 ] Nevertheless, in the matter before me, the BIA has admitted that the Information is the property of the ALC. The BIA acknowledged that the siteholder agreement between the ALC and the VLT operators stated that the information supplied to the ALC is the sole property of the ALC.

At the same time, however, the BIA insisted that the VLT operators will suffer harm if the Information is disclosed, and that the matter should be considered on that basis. [ 57 ] On this point, there does appear to be a disconnect in that the BIA is, on the one hand, alleging potential harm if the Information is released; but then, on the other hand, the BIA agrees that the ALC has the proprietary interest in the Information.

In my view, it would seem that if potential harm was a concern, then it would generally be expected that the owner of information is the one who would be harmed by the release of that information. As a result, if the VLT operators could suffer harm due to the release of the Information, then I query if they have retained some form of ownership in the Information, despite the terms of the siteholder agreement with ALC. Indeed, ownership can be beneficial ownership, or otherwise. [ 58 ] I raise this question for consideration in light of section 3(2)(c)(iii) of the Act .

Section 3(2) (c)(iii) suggests that the exceptions to access are necessary to “protect from harm the confidential proprietary and other rights of third parties”. More specifically, this is a unique circumstance where harm from the release of information is being alleged by the BIA, when another party (the ALC) purportedly owns the information pursuant to contract. In my view, considering section 3(2) (c)(iii), such a unique circumstance warranted a hard look by the Commissioner as to whether the VLT operators retained rights to be protected by

section 39 ; including whether they actually retained any ownership, despite the terms of the contract. Such evaluation could only be fully canvassed by input from the party who may be harmed by the release of information. [ 59 ] In any event, the BIA persuasively submitted that harm to the VLT operators could be caused based upon the inferences that can be made regarding the Information. As was stated in Mr. Etheridge’s affidavit, “the public will be able to infer how much commission each retailer is earning, and by extension whether an establishment is successful or not”.

Further, there was a suggestion by the BIA that such inferences from the Information may impact safety concerns of the VLT operators. [ 60 ] This submission by the BIA, in my view, implicitly raises a statutory

interpretation issue regarding whether section 39(1) (a)(ii) of the Act exempts from disclosure information which can be inferred from the Information. This would be a relevant consideration if the agreement between the ALC and the VLT operators does not address ownership of information which can be inferred from the Information; and if the VLT operators do indeed own that inferred information. The VLT operators’ representations would assist the Commissioner in canvassing this issue. [ 61 ] Further on this point, arguably

section 39 already contemplates a circumstance where one party owns the information, and its disclosure may harm another person. Specifically, section 39(1)(c)(iii) refers to information which if disclosed could “reasonably be expected to … result in undue financial loss or gain to any person”. Again, the VLT operators’ representations would assist the Commissioner in canvassing this issue. [ 62 ] I add that in Mr. Etheridge’s affidavit, which was filed in his capacity as President of the BIA, he has set forth significant and serious concerns regarding the implications of releasing the Information to the public.

At paragraph 9 of his affidavit, he has set forth compelling and persuasive support for the position that the release of the Information could indeed harm the business interests of VLT

operators, put them at a competitive disadvantage, and open them to possible harm. He stated at paragraph 9 of his affidavit, as follows: 9. Through consultation with our membership there exist significant concerns regarding the implications of releasing this information to the public, including: (

a) Members of the BIA manage private commercial business across the province. Within those business revenues are generated through a combination of bar sales, food sales and VLT revenues. (

b) The bar business is highly competitive, characterized by small profit margins and significant fluctuation in revenues by season, with lows in the winter months supplemented by higher sales during the tourist season. The revenue stream associated with VLTs is an essential part of the bar industry. It significantly increases the revenues of our businesses, allowing our members to hire as many employees as possible year-round. (

c) Should a retailer’s name and location be published, coupled with the net revenues generated by the particular retailer, the public will be able to infer how much commission each retailer is earning, and by extension, whether an establishment is successful or not. (

d) The release of this information would provide competitors with significant particulars as to the revenues being generated at our members’ establishments and expose them to undercutting and loss of advantage in the industry. (

e) Notwithstanding the above, it is important to note that the net revenue figure is in itself misleading. Without context, the disclosure of the net revenues will lead the public to believe that establishments are generating income that they are not, as this figure does not show the operating costs associated with VLTs, including mortgage/rent, electricity, payroll, insurance, etc. (

f) The release of this information would harm the business relationship between our members and the ALC. The siteholder agreement entered into by our members and ALC did not make any provision for the disclosure of revenues in the manner now being requested. It is unduly onerous to impose such a disclosure requirement on our membership after the fact, in the absence of any advance notice or consultation with industry generally. (Exhibit “C) (

g) There are safety concerns associated with the release of this information. If the public becomes aware of which establishments are most successful, and imparts the volume of cash and at what locations it could be found, it will render those establishments a target for crime. [ 63 ] Further, at paragraphs 10 and 11 of his affidavit, he stated, as follows: 10. To summarize, the release of this information would harm the business interests of VLT retailers and put them at a competitive disadvantage.

Once this information is released, the public will gain insight into the financial circumstances of various establishments throughout the province. The public or competitors would gain a precise knowledge of which establishments are most successful. This would have a negative impact on current retailers, to the extent that it would provide a competitive advantage to parties interested in pursuing similar business opportunities, and could lead to financial harm to our members who may be contemplating a sale of their business.

The misleading nature of the net revenue figures may also cause an influx of people into the marketplace, which would undermine our members’ position in the industry. 11. Our members in rural areas have heightened concerns in relation to the disclosure of this information, as their establishments are in tight-knit communities where owners are known to the public. From a security standpoint, these establishments are more vulnerable, as there is less police presence in small communities.

From a business perspective, rural members fear that the release of this information will expose them to public backlash, which would have a very negative impact on business. [ 64 ] As stated, this affidavit persuasively supports the BIA’s position that the release of the Information could indeed harm the VLT operators. If the VLT operators had been given the opportunity to make representations to the Commissioner, then this is all information which could have been considered by the Commissioner before determining whether there should be an exemption from disclosure under

section 39 of the Act . [ 65 ] In

summary, based upon the wording of the Act , I agree with the position of the Department and the Commissioner that the VLT operators, through the BIA, do not have standing to appeal the decision of the head of the Department under the statutory appeal provisions of the Act ; they do not have standing to appeal a decision to which they were not a party. They were not a party to the decision due to the fact that they were not given notice by the head of the Department, in accordance with section 19(1) . [ 66 ] However, based on the foregoing analysis, I also find that this was not a clear case for not giving notice to the VLT operators under section 19(1) of the Act . The issue of whether

section 39 applied to the VLT operators was not as straight forward as was

suggested by the Respondent and the Commissioner. Further, in my view,

section 96 of the Act imbued the Commissioner with the authority and the responsibility to address the Department’s failure to notify the VLT operators; even though the burden of proof rested with the ALC under

section 43 of the Act . The Commissioner could have invited representations from the VLT operators. He did not. As a result, the impact of the potential for harm on the analysis of ownership, and on the

interpretation of

section 39, remains undetermined due to the statutory processes engaged in this matter. [ 67 ] The next issue to be determined is whether judicial review is available to the BIA. [ 68 ] The Commissioner and the Department take the position that judicial review is not available to the BIA. The Commissioner submitted that the Act is a complete and exhaustive statutory code with respect to access to information and protection of privacy. The Commissioner pointed to

section 114 of the Act , and submitted that by enacting

section 114 of the Act , the legislature chose to eliminate judicial reviews and/or appeals for failure to give notice. Rather,

section 114 permits a third party to take action for damages arising from failure to give notice in certain circumstances.

Section 114 of the Act states, as follows: 114

(1) An action does not lie against the government of the province, a public body, the head of a public body, an elected or appointed official of a local public body or a person acting for or under the direction of the head of a public body for damages resulting from (

a) the disclosure of or a failure to disclose, in good faith, a record or part of a record or information under this Act or a consequence of that disclosure or failure to disclose; or (

b) the failure to give a notice required by this Act where reasonable care is taken to ensure that notices are given .

(2) An action does not lie against a Member of the House of Assembly for disclosing information obtained from a public body in accordance with paragraph 68 (1)(

k) while acting in good faith on behalf of an individual. [ 69 ] To support the Commissioner’s submission on

section 114 , reference was made to the discussion of principles of statutory

interpretation in the leading case of Archean Resources Ltd. v. Newfoundland (Minister of Finance) , 2002 NFCA 43 . At paragraphs 19, 22 and 23, the Court of Appeal stated, as follows: 19 The starting point for

interpretation of any statute enacted by the legislature of this province is the legislature's own directive to the courts as found in s. 16 of the

Interpretation Act: Every Act and every regulation and every provision of an Act or regulation shall be considered remedial and shall receive the liberal construction and

interpretation that best ensures the attainment of the objects of the Act , regulation or provision according to its true meaning. … 22 Instead of mandating some fictionalized search for a collective "legislative intention", s. 16 directs the court to consider every provision "remedial" and to interpret it so that it "best" ensures the attainment of its "objects" according to its "true" meaning.

This requires a consideration, as an integral part of the interpretive exercise, of the problem or "mischief" to which the legislature directed its legislative act as a remedy and then the drawing of an inference, based on the language of the whole enactment and the court's general knowledge of the state of the pre-existing law and any information as to the broad social context in which the legislative act occurred, as to what, broadly speaking, the object or objects of the legislative act must have been. The end result is to arrive at a "true" meaning.

That inevitably requires an examination of more than the bare words of the legislative enactment that is in issue, no matter how clear or unambiguous they may at first blush appear. The surrounding text, the interrelation of other related statutes, the social and legislative context in which the provision was enacted, and other extrinsic aids are all sources to be consulted in this exercise.

Obviously, if the bare words of the relevant provision appear to be straightforward and seem on their face to admit of only one meaning, they may end up controlling the result, but even in such a case, it is not sufficient to stop the interpretive exercise at this "plain" meaning; s. 16 requires that at the very least this plain meaning be given a "reality check" by being tested against other relevant sources of meaning to ensure that there is not some nuance or variation in the normal or apparent meaning that might indicate a different meaning in the particular context under consideration.

"True" meaning is not plain meaning; it is a conclusion arrived at by reconciling all the appropriate indicators of meaning that the court is directed to consider. 23 In truth therefore, s. 16 enunciates a principle of harmonization in which the courts are directed, in cases of dispute, to adopt and apply an

interpretation that fairly reconciles the language used in the enactment with the broader objects of the legislation so as to achieve the general goal, or to rectify the mischief, to which the legislative act appears to have been directed. That exercise determines the general ambit of impact of the legislative act and provides the basis for the court to conclude whether the particular fact situation before it should fall inside our outside that ambit.

[70] In reference to Archean Resources Ltd., the Commissioner submitted that the “mischief” intended to be addressed by section114 of the Act was to preclude an unlimited number of appeals by third parties with respect to the same requested records. If appeals orjudicial reviews were permitted, then such would be unlimited and significantly delay an applicant’s access to information; and suchdelay is, in itself, contrary to the purpose of the Act. [71] I agree that

section 114 of the Act does indeed have the effect of preventing an unlimited number of appeals. However, I do notagree that

section 114 entirely shuts the door to judicial review in the unique circumstances of this case. More particularly, in the matterbefore me, the Information has not yet been released; and the BIA has put forward persuasive affidavit evidence, which supports theprospect of harm. That evidence would have been before the Commissioner, if the VLT operators had been given the opportunity tomake submissions. [72] To elaborate,

section 114 applies only after disclosure has taken place, and harm has ensued, allegedly from the disclosure bythe Department.

Section 114 applies when the information has been released, and therefore there is no opportunity to backtrack. That isthe mischief

section 114 is designed to address. As Justice Orsborn stated in ALC v. NL (at paragraph 40),

section 114 is a “limited after-the-fact civil remedy”. However, this case before the Court is not an “after-the-fact” case. Disclosure has not yet occurred. Anyprospect of harm is on hold, pending disposition of this matter. [73] In the case where disclosure has already taken place, an appeal or judicial review arising from the failure to give notice wouldbe moot; and the legislature permits recourse in damages under

section 114, albeit in limited circumstances. However, the Act does notpreclude or provide any recourse for this circumstance; where the Department has not yet disclosed the Information, but has beenapprised that a group with no standing to appeal could suffer harm from disclosure. [74] Further, in my view it is incongruous with section 3(2)(c)(iii) of the Act to simply say that the VLT operators have post-disclosure recourse under

section 114 of the Act, when disclosure has not yet occurred; and when there is evidence of the prospect ofharm. [75] I conclude that the Act does not preclude judicial review being sought by a third party who has no standing to appeal due to lackof notice under section 19(1), but who may suffer harm from a department’s decision to disclose; provided that disclosure has not yetoccurred. There is no adequate alternate remedy in the statute for such circumstances. [76] Having determined that judicial review is available to the BIA, the next issue to determine is whether the BIA is entitled to anyrelief.

In the circumstances of this case, this requires determining whether there was a breach of the duty of procedural fairness. Thisinvolves consideration of the statutory processes before the Department and the Commissioner. [77] To begin with, one issue on judicial review is whether the Department’s failure to give notice to the VLT operators resulted in abreach of the duty of procedural fairness. That decision not to notify the VLT operators was initially made by the Department undersection 19(1) of the Act.

However, that decision was ultimately adopted by the Commissioner, as evidenced by the Commissioner notengaging

section 96 of the Act to include the VLT operators in the Commissioner’s statutory processes. In other words, because of thestatutory regime, the Department’s decision not to notify the VLT operators was carried over to the statutory processes undertaken by theCommissioner; however, the Commissioner, in effect, made his own decision not to notify the VLT operators, when he did not seekinput from the VLT operators under

section 96. [78] To elaborate, under

section 96 of the Act, the Commissioner could have received submissions from the VLT operators in thismatter.

Section 96 of the Act refers to a “person” rather than the “parties to the complaint”; therefore, the Commissioner may go beyondthe “parties to the complaint” when conducting an investigation, or receiving submissions. In other words, the Commissioner is notconfined by the Department’s initial assessment regarding who to notify under section 19(1) of the Act. Rather,

section 96 contemplatesthe Commissioner inviting representations; even though the burden of proof rested with the ALC. [79] In my view, the Commissioner’s ability to invite submissions under

section 96 is consistent with a truth-seeking function. Indeed, as will be discussed, it is also my view that the Commissioner’s statutory process is adjudicative in nature. Further, although thelegislation refers to the Commissioner’s decision as merely a recommendation, it had the effect of a decision when it was adopted by theDepartment in this matter. [80] As a result, in my view the Commissioner cannot prevent judicial review of his determination, in the circumstances of this case.Therefore, I must also consider whether the Commissioner breached the duty of procedural fairness by his failure to invite and considerrepresentations from the VLT operators, under

section 96 of the Act. [81] As indicated by the Court of Appeal in Aylward v. Law Society of Newfoundland and Labrador, 2013 NLCA 68, at paragraph19, when considering whether there was a breach of the duty of procedural fairness, the Court does not need to assess the standard ofreview; (see also Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, at paragraph 74). [82] Further, the analysis and factors to be considered are described at paragraph 29 of the Aylward v. Law Society of Newfoundlandand Labrador decision in reference to Knight v.

Indian Head School Division No. 19, (SCC), [1990] 1 S.C.R. 653, andBaker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, as follows: 29 As noted by Justice L'Heureux-Dubé in Knight v.

Indian Head School Division No. 19, (SCC), [1990] 1 S.C.R.653, "the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case." Indetermining the content, Courts are directed to look at the following non-exhaustive factors: (1) the nature of the decision; (2) the natureof the statutory scheme; (3) the significance of the interests; (4) the legitimate expectations of the person challenging the decision; and(5) the previous procedural choices of the administrative decision maker (Patient X v.

College of Physicians and Surgeons of NovaScotia, 2013 NSSC 165, 330 N.S.R. (2d) 345 at para. 16, citing Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 at paras. 21-28). The ultimate objective of this analysis is to ensure that "administrativedecisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and socialcontext, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by

the decision-maker" ( Baker , paragraph 22 ). [ 83 ] The analysis is to be considered in the context of the statutory process (the “ ATIPPA process”). To recap, the ATIPPA process engages third parties first through notice under section 19(1) from the Department. The third parties engage the Commissioner in the next step, if a complaint is filed. The Commissioner conducts an investigation, and prepares a report. The final step reverts the matter back to the Department for the decision with respect to the Commissioner’s recommendations. (

i) The nature of the decision [ 84 ] With respect to this factor, at paragraph 37 in Aylward v. Law Society of Newfoundland and Labrador , the Newfoundland and Labrador Court of Appeal stated, as follows: 37 In Baker , at paragraph 23 , L'Heureux-Dubé J., citing Knight , noted that "the closeness of the administrative process to the judicial process should indicate how much of those governing principles should be imported into the realm of administrative decision making".

Thus, the more a decision making process resembles judicial, adjudicative decision making, the greater the procedural rights afforded to participants. [ 85 ] In my view, as stated, while the process before the Commissioner was described in the Act as an investigation with an ensuing recommendation, it actually was like “adjudicative decision making”; which included the determination of whether

section 39 of the Act applied to the ALC. [ 86 ] More specifically, even though the burden was on the ALC in the complaint process before the Commissioner, the Commissioner could have invited the VLT operators to make submissions under

section 96 . Such an invitation would be appropriate if the Commissioner performs a truth-seeking function, in the form of adjudicative decision making. In my view, he does;

section 96 contemplates the Commissioner inviting representations from persons, and not just the parties to the complaint. [ 87 ] Further, the Department chose to adopt the Commissioner’s “recommendation”; however, the Department could have chosen not to follow the Commissioner’s recommendation.

Nevertheless, the process before the Commissioner has, in my view, other significant indicators of an adjudicative decision making process including: receiving submissions; having the discretion to invite representations from persons other than the parties; conducting legal analysis, including considering and interpreting the Act ; considering decisions from other jurisdictions; and providing a written report. [ 88 ] In my view, the nature of the Commissioner’s decision making in this matter was adjudicative, and this supports “greater procedural rights” and providing notice by inviting representations from the VLT operators, at the stage of the ATIPPA process before the Commissioner. [ 89 ] By contrast, I see little evidence of adjudicative decision making in the two stages of the ATIPPA process before the Department.

While the record reflects some communications between the ALC and the Department, the record also suggests that the ALC’s full submissions were, for the most part, to the Commissioner. (ii) The nature of the statutory scheme [ 90 ] On this factor, the Court of Appeal in Aylward v.

Law Society of Newfoundland and Labrador stated at paragraph 30 , as follows: 30 In looking at the nature of the statutory scheme, a reviewing court should consider such matters as, "the role of the particular decision within the statutory scheme" or "other surrounding indications in the statute that help determine the content of the duty of fairness" and whether there is an appeal procedure available.

The absence of an appeal procedure suggests greater procedural protections should be afforded. (See Baker , per L'Heureux-Dubé J., at paragraph 24.) [ 91 ] As previously discussed, the statutory scheme gives standing to appeal under

section 53 or 54 of the Act only to third parties who were provided notice under section 19(1) . It was the initial choice made by the head of the Department not to notify the VLT operators under section 19(1) . As a result, the VLT operators did not have standing to appeal the Department’s decision. Further, there is no statutory right to appeal the Commissioner’s “recommendations”, even though such informed the Department’s decision, and were adopted by the Department. [ 92 ]

Section 114 provides a limited post-disclosure civil remedy due to a failure to give notice, if harm ensues. That remedy is not applicable in this matter, because disclosure had not yet occurred. [ 93 ] As stated above by the Court of Appeal in Aylward v. Law Society of Newfoundland and Labrador , the “absence of an appeal procedure suggest greater procedural protections should be afforded”.

Therefore, in my view, the absence of a statutory right of appeal, or remedy, for the VLT operators generally supports greater procedural protections in the ATIPPA process. (iii) The importance of the decision to those affected [ 94 ] The impact of the decision on the VLT operators is detailed in Mr. Etheridge’s affidavit. As already stated, there is a persuasive argument that harm may result to some of the VLT operators, if disclosure is permitted.

This factor also generally supports greater procedural protections for the VLT operators. (iv) The legitimate expectation of the person challenging the decision [ 95 ] On this factor, at paragraph 45 of Aylward v. Law Society of Newfoundland and Labrador , the Court of Appeal, again in reference to Baker , stated: 45 As L'Heureux-Dubé J. noted in Baker at paragraph 26 , the doctrine of legitimate expectations is based upon the principle that "

'circumstances' affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights". Here, the Appellant did not point to any promises, policies or regular practices of the Law Society in conducting such hearings. Further to this, he did not point to any substantive promises which might accord him additional procedural rights.

There was, therefore, no legitimate expectation that there would be any procedure beyond what was afforded in this case. [ 96 ] In the matter before me, the Applicant has not referenced promises, policies or regular practices of the head of the Department, or the Commissioner, regarding notice to third parties. [ 97 ] Nevertheless, I have considered that as per the Merck decision, the threshold for giving notice under section 19(1) of the Act is very low. As stated, the VLT operators could suffer harm from disclosure.

That being the case, in my view it was a legitimate expectation of the VLT operators to have been provided notice to seek their position on whether they had any proprietary interest; or whether

section 39 could possibly be interpreted as applying to the VLT operators. [ 98 ] Such expectations were significantly enhanced at the stage of the ATIPPA process before the Commissioner. The Commissioner was made aware by the ALC’s submissions that there was the potential for harm to the VLT operators. Further, the Commissioner had the statutory authority to invite the VLT operators to make representations under section 96(1) . [ 99 ] In my view, this factor supports procedural protections, particularly in respect of statutory processes before the Commissioner. (

v) Previous procedural choices by the head of the Department, and the Commissioner [ 100 ] On this factor, the Court of Appeal in Aylward v. Law Society of Newfoundland and Labrador stated at paragraph 46 , as follows: 46 In Baker , at paragraph 27 , L'Heureux-Dubé J. noted that the analysis should "take account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances".

She continued, stating that "while this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints". [ 101 ] The head of the Department has the discretion to identify who to notify of its decision. This discretion is tempered by the comments of the Supreme Court of Canada in the Merck decision respecting the low threshold to be accorded for notice. Nevertheless, it is a procedural choice under section 19(1) which falls wholly within the Department’s discretion. [ 102 ] Similarly, the Commissioner has discretion under

section 96 of the Act to allow a person to make representations. This factor does not support a finding of procedural protections. CONCLUSION [ 103 ] I have assessed and balanced all the above factors in light of the statutory regime, the submissions of Counsel, the record, the affidavit evidence, and the foregoing analysis. In my view, the duty of procedural fairness was breached in the circumstances of this case, but not at the stage of the ATIPPA process before the Department. I conclude that the Commissioner breached the duty of procedural fairness; but the Department did not.

I conclude this based upon the analysis of all of the factors; and primarily my finding that the head of the Department did not engage in adjudicative decision making. However, the Commissioner did. [ 104 ] The Commissioner’s determination was adopted by the Department; and the affidavit evidence indicates that the decision to disclose the Information will impact the VLT operators. Given that the prospect of harm to the VLT operators was clearly put before the Commissioner, fairness dictated that he should have given the VLT operators the opportunity to make representations under

section 96 . Instead, he made a decision respecting

section 39 based on submissions from the Department and the ALC, without hearing from the VLT operators; even though the ALC had brought to his attention the potential for harm to the VLT operators. [ 105 ] Accordingly, based on the foregoing analysis, I conclude that the Commissioner owed a duty of procedural fairness to the VLT operators, and that he breached that duty by not notifying the VLT operators and inviting their representations. [ 106 ] Therefore, after considering all the submissions, the Act , the evidence, the case law, and in light of the foregoing analysis, I conclude and order that the Commissioner’s decision to recommend disclosure of the Information is to be set aside.

Further, because the Department’s second decision under

section 49 of the Act was informed by the Commissioner’s decision, that decision to disclose the information is no longer in effect. In addition, the matter is to be remitted back to the Commissioner for reconsideration after inviting the BIA to make representations, under

section 96 of the Act . [ 107 ] For clarity, the matter is remitted back to the Commissioner, not the Department. This is due to my finding that the duty of procedural fairness was breached by the Commissioner; it was not breached by the Department. [ 108 ] For further clarity, the Department’s initial decision under section 19(1) of the Act has not been set aside. Rather, it is the Commissioner’s decision which is set aside; and, as a consequence, the Department’s decision under

section 49 is of no effect. [ 109 ] It also bears repeating that judicial review, and the ensuing remedy, was available solely based upon the unique circumstances of this case. Disclosure had not yet occurred, and the decision to disclose was made without notifying a third party, who then had no statutory right of appeal; but who persuaded the Court that harm could occur if this disclosure was permitted. [ 110 ] With respect to costs, the BIA was unsuccessful on appeal, but successful on judicial review. As a result, I am further ordering costs be awarded to the BIA, on a column 2 basis, to be shared equally by the Department and the Commissioner.

[ 111 ] Order accordingly. _____________________________ Valerie L. Marshall Justice