Dale Kirby AppELLant And: Bruce Chaulk Respondent And: Office of the Information v. Privacy Commissioner, 2021 NLSC 86

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Kirby v. Chaulk , 2021 NLSC 86 Date : June 10, 2021 Docket : 201901G1380 Between: Dale Kirby AppELLant And: Bruce Chaulk Respondent And: Office of the Information and Privacy Commissioner Intervenor Before: Justice Frances J. Knickle On Appeal From: A Decision of the Commissioner for Legislative Standards pursuant to the Access to Information and Protection of Privacy Act, 2015 , SNL 2015, c. A-1.2 , File # ATIPP-HOA-2018-18, dated the 29 day of October, 2018. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: July 7, 2020

Summary:

The Respondent refused to disclose records relating to an investigation of the Appellant regarding the Code of Conduct for members ofthe legislature. The Respondent maintained that the material sought was exempt from disclosure. The Intervenor supported this decision.The Appellant appealed the refusal by the Respondent to disclose the records. The Appellant submitted that the investigation related tomatters of his conduct as an “employee” in the “workplace”, and as such, the Appellant was entitled to access to the records. The records sought were exempt from disclosure.

As records related to the investigative functions of a statutory office under the Houseof Assembly, the applicable legislation required that such records be exempt from disclosure. There were no exceptions under thelegislation that brought the Appellant within the class of persons who could access the records; notwithstanding that the Appellant wasthe subject of the particular investigation. The Appeal was dismissed without costs. Appearances: Allison S. Conway and William A. F. Hiscock Appearing on behalf of the Applicant Andrew A. Fitzgerald Appearing on behalf of the Respondent J.

Alexander Templeton Appearing on behalf of the Intervenor Authorities Cited: CASES CONSIDERED: Corporate Express Canada, Inc. v. Memorial University of Newfoundland, 2014 NLTD (G) 107; CanadianBroadcasting Corp. v. Newfoundland and Labrador (Department of Child, Youth and Family Services), 2013 NLTD (G) 175; ImperialTobacco Co. v. Newfoundland and Labrador (Attorney General), 2007 NLTD 172; Archean Resources Ltd. v. Newfoundland (Ministerof Finance), 2002 NFCA 43; College of North Atlantic v. McBreairty, 2020 NLCA 19; Oleynik v. Memorial University of Newfoundlandand Labrador, 2021 NLSC 52; Duffy v.

Senate of Canada, 2018 ONSC 7523, aff'd 2020 ONCA 536, leave to appeal denied 2021CarswellOnt 1654 (S.C.C.); Canada (House of Commons) v. Vaid, 2005 SCC 30; New Brunswick Broadcasting Co. v. Nova Scotia(Speaker of the House of Assembly), (SCC), [1993] 1 S.C.R. 319; Harvey v. New Brunswick (Attorney General), (SCC), [1996] 2 S.C.R. 876; Tafler v. British Columbia (Commissioner of Conflict of Interest) (1998), (BC CA), 161 D.L.R. (4th) 511, 80 A.C.W.S. (3d) 52 (B.C.C.A); March v. Hodder, 2007 NLTD 93; Ferguson v. B.C.N.U., 2005 BCSC982; Lavigne v.

Ontario (Attorney General) (2008), (ON SC), 175 A.C.W.S. (3d) 740, 91 O.R. (3d) 750 (Sup. Ct.B.C.); Newfoundland and Labrador (Information and Privacy Commissioner) v. Eastern Regional Integrated Health AuthorityInformation, 2015 NLTD(G) 183; Descouteaux v. Mierzwinski, (SCC), [1982] 1 S.C.R. 860 STATUTES CONSIDERED: Newfoundland and Labrador, House of Assembly, Code of Conduct for Members (St. John’s: House ofAssembly, 2019); House of Assembly Accountability, Integrity and Administration Act, S.N.L. 2007, c. H-10.1; Access to Informationand Protection of Privacy Act, 2015, SNL 2015, c. A-1.2;

Interpretation Act, R.S.N. 1990, c. I-19; Canadian Charter of Rights andFreedoms,

Part I of the Constitution Act, 1982, being

Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11; House of Assembly Act,R.S.N.L. 1990, c. H-10; Public Service Commission Act, R.S.N.L. 1990, c. P-43 RULES CONSIDERED: Rules of the Supreme Court, 1986 S.N.L. 1986, c. 42,

Schedule D TEXTS CONSIDERED: Maingot, J. P. Joseph, Parliamentary Privilege in Canada, 2nd ed. (Montréal: McGill-Queen's UniversityPress, 1997); Newfoundland and Labrador, Rebuilding Confidence: Report of the Review Commission on Constituency Allowances andRelated Matters, Commissioner: The Honourable J. Derek Green (St. John’s: Government of Newfoundland and Labrador, 2007); DavidHarris, Wrongful Dismissal, vol. 1 (Toronto: Thomson Reuters, 2019)

REASONS FOR JUDGMENT Knickle, J. : INTRODUCTION [ 1 ] This appeal addresses the competing interests between the right of an individual who seeks access to information and the need to limit access to information to maintain the integrity of the operation of the legislative arm of government: the House of Assembly. How is that balance to be struck when the Applicant is a member of the legislature, and the records sought are protected by the principles of parliamentary privilege?

The records were created in connection with an investigation of whether the Appellant failed to adhere to the Newfoundland and Labrador, House of Assembly, Code of Conduct for Members (St. John’s: House of Assembly, 2019). [ 2 ] For the reasons that follow, the appeal of the Respondent’s refusal to disclose the records to the Appellant is dismissed. OVERVIEW OF BACKGROUND FACTS [ 3 ] The facts and circumstances leading up to this appeal are in agreement between the parties. Between 2011 and 2018 the Appellant, Dale Kirby, was elected as a member of the House of Assembly for Newfoundland and Labrador.

He served in the provincial cabinet between 2015 and 2018. His tenure within government as a member was not without incident. [ 4 ] In May and July of 2018, two of his fellow members of the legislature made formal complaints regarding his conduct. The Respondent, in his statutory role as the Commissioner for Legislative Standards under the House of Assembly Accountability, Integrity and Administration Act, SNL 2007, c. H-10.1 ( HAAIAA ) conducted an investigation of the complaints.

The Respondent retained counsel from the law firm of Reuben Thomlinson, L.L.P., from Ontario, to assist in conducting the investigations. According to the Respondent, the firm specialized in investigations of conduct within a workplace setting. [ 5 ] Although the Respondent retained this law firm, at the conclusion of the investigation, the Respondent was the one who prepared two written reports regarding the results.

The reports explained the complaints, the steps taken in the investigation, including the details of interviews with the complainants as well as the Appellant’s response, and the Respondent’s conclusions. The conclusions contained his recommendations to the House of Assembly as to what action might be appropriate, if any, in light of his findings. [ 6 ] With respect to the complaints by the first member, while accepting that the Appellant engaged in some of the behaviors complained of, the Respondent found no violation of the Code of Conduct .

However, with respect to the second complaint, the Respondent found one violation of the Code of Conduct , and made recommendations to the House of Assembly for a penalty by way of reprimand of the Appellant.

The Commissioner stated, at page 23 of his report, dated October 3, 2018: In the circumstances of this case, that is, where the majority of the allegations have been dismissed, where the member has admitted to the conduct in question and has been cooperative throughout, and where the member has suffered a significant financial penalty in being removed from Cabinet for a significant period of time, it is my recommendation to the House of Assembly that MHA Kirby be reprimanded. [ 7 ] Both reports, as well as the formal letters of complaint from the two members, were disclosed to the Appellant.

However, on October 28, 2018, the Appellant filed an “Access to Information Request” under the Access to Information and Protection of Privacy Act, 2015 , SNL 2015, c. A-1.2 , ( ATIPPA ), requesting disclosure of the complete investigative files related to the complaints made against him.

According to the written submissions of the Intervenor, the Appellant stated in his request: All unedited reports and documents produced by the law firm Rubin Thomlinson before, during and subsequent to the investigation of Dale Kirby as a result of allegations made by Colin Holloway and Pam Parsons. [ 8 ] The request for the documentation was refused by the Respondent on two grounds: that the material was protected by solicitor-client privilege under section 30(1) (

a) of ATIPPA , and that the records were exempt under

section 41 (

c) of ATIPPA as documents that are “connected to” an investigation by the Commissioner of Legislative Standards, a statutory office under the umbrella of the operations of the House of Assembly. [ 9 ] The Appellant filed a complaint with the Intervenor under

section 42 of ATIPPA seeking a review of the refusal by the Respondent to disclose the records . In a report dated January 24, 2019, the Intervenor agreed with the decision to refuse disclosure under

section 41 of the Act , and recommended that the records in question be withheld. The Intervenor found that there were no exceptions under the legislation to the prohibition under

section 41 applicable to the Appellant such that he could have access to the records. In particular, the Intervenor found that

section 33 of ATIPPA did not apply to the circumstances. The Intervenor made no finding with respect to whether or not the records were protected by solicitor-client privilege under section 30(1). [ 10 ] In light of the recommendation of the Intervenor, the Respondent continued to refuse access to the records. It is from this decision that the Appellant now appeals to this Honourable Court. In support of his position, the Appellant filed an affidavit with several attachments, including copies of both the written complaints by the two members, the two written reports prepared by the Respondent,

copies of media reports, and excerpts from Hansard. A copy of the records at issue were also filed with the Court and placed under seal. [ 11 ] The Intervenor gave notice of his intention to intervene in the appeal shortly thereafter, as is permitted under ATIPPA , and the matter was set down for hearing. The report of the Intervenor’s review of the Respondent’s refusal to disclose was also filed. The position of the parties [ 12 ] The Appellant submits that there is no basis to refuse disclosure under ATIPPA , and disclosure should be ordered by this Court. The Appellant submits that even if the legislation required the Respondent to refuse to disclose the records under

section 41 of ATIPPA , the Appellant falls within an exception contemplated under

section 33 of ATIPPA . Further, the public interest in disclosure outweighs the merits of exercising any discretion to refuse disclosure. The Appellant also submitted that the records are not protected by solicitor-client privilege as asserted by the Respondent. The Appellant submits that while the authors of the records are lawyers, they were acting as “investigators” in the course of a “workplace” investigation.

The contents of their investigative reports are not “legal advice” sought by or given to the Respondent that was intended to be confidential, but in their capacity as investigators. [ 13 ] The Respondent, in contrast, submits not only was he authorized under ATIPPA to withhold the records, but was required to refuse disclosure of the records by virtue of

section 41 of ATIPPA . He submitted the exception available under

section 33 did not apply to the Appellant. Further, section 30(1) permitted refusal of disclosure by virtue of the records being protected by solicitor-client privilege. The Respondent submits that if the Court finds that

section 41 (

c) does not apply to the records because of

section 33, the Court will need to review the records in question to determine whether or not they are protected by solicitor-client privilege. [ 14 ] The Intervenor agrees with the Respondent that the records cannot be disclosed by virtue of

section 41 (

c) of ATIPPA . It took no position with respect to whether or not the records were protected by solicitor-client privilege; except to also submit that the determination of whether or not the records were so protected would require the Court to examine each of the records. THE STANDARD OF REVIEW OF AN APPEAL UNDER ATIPPA [ 15 ] The Appellant’s rights of appeal are under

section 54 of ATIPPA . The parties were in general agreement as to the analytical framework to be applied in this species of appeal. The burden is on the Respondent, on the civil standard, to justify withholding disclosure of the requested records (see Corporate Express Canada, Inc . v. Memorial University of Newfoundland, 2014 NLTD (G) 107 and Canadian Broadcasting Corp. v . Newfoundland and Labrador (Department of Child, Youth and Family Services) , 2013 NLTD (G) 175. [ 16 ] As per

section 59 of ATIPPA , the hearing of the appeal by this Court is de novo ; that is, as if the matter is a “new matter”. The Court is not asked to determine whether there has been an error of law committed at that lower level of decision making, but must decide the issues “anew”. Based on the material filed on the appeal, and arguments made at the hearing, the Court must decide whether or not refusal of disclosure is permitted or required under the Act . There is little deference owed to the original decision (see for example the comments of Green, J. (as he then was) in Imperial Tobacco Co . v . Newfoundland and Labrador (Attorney General) , 2007 NLTD 172 ). [ 17 ] Under

section 57, the practice and procedure follows the Rules of the Supreme Court, 1986 S.N.L. 1986, c. 42,

Schedule D , with adaptions as considered appropriate by the judge. The powers of the Court on hearing of the appeal are stated in

section 60. As per

section 60, if I am satisfied that the Respondent has met its burden in withholding the disclosure, or I am satisfied that the Respondent must refuse disclosure, I may dismiss the appeal. If not, I may order disclosure of either all or part of the records. [ 18 ] It is within the above framework that I will approach the issues described to be addressed. ISSUES [ 19 ] The issues that must be decided are as follows: 1) Are the records in question exempt from disclosure by virtue of

section 41 (

c) of ATIPPA ? 2) Does

section 33 of ATIPPA apply to the circumstances, and require disclosure of the records? 3) Does solicitor-client privilege apply to the records, as per

section 30 of ATIPPA ? ANALYSIS Issue 1) Are the records in question exempt from disclosure by virtue of

Section 41 (

c) of ATIPPA ? [ 20 ] For ease of reference sections 33 and 41 of ATIPPA are reproduced below.

Section 33 of ATIPPA states: 33.

(1) For the purpose of this

section (a) "harassment" means comments or conduct which are abusive, offensive, demeaning or vexatious that are known, or ought reasonably

to be known, to be unwelcome and which may be intended or unintended; (b) "party" means a complainant, respondent or a witness who provided a statement to an investigator conducting a workplace investigation; and (c) "workplace investigation" means an investigation related to (

i) the conduct of an employee in the workplace, (ii) harassment, or (iii) events related to the interaction of an employee in the public body's workplace with another employee or a member of the public which may give rise to progressive discipline or corrective action by the public body employer.

(2) The head of a public body shall refuse to disclose to an applicant all relevant information created or gathered for the purpose of a workplace investigation.

(3) The head of a public body shall disclose to an applicant who is a party to a workplace investigation the information referred to in subsection (2) .

(4) Notwithstanding subsection (3), where a party referred to in that subsection is a witness in a workplace investigation, the head of a public body shall disclose only the information referred to in subsection (2) which relates to the witness' statements provided in the course of the investigation. Emphasis added. [ 21 ]

Section 41 states: Disclosure of House of Assembly service and statutory office records 41. The Speaker of the House of Assembly, the officer responsible for a statutory office, or the head of a public body shall refuse to disclose to an applicant information (

a) where its non-disclosure is required for the purpose of avoiding an infringement of the privileges of the House of Assembly or a member of the House of Assembly; (

b) that is advice or a recommendation given to the Speaker or the Clerk of the House of Assembly or the House of Assembly Management Commission that is not required by law to be disclosed or placed in the minutes of the House of Assembly Management Commission; or (

c) in the case of a statutory office as defined in the House of Assembly Accountability, Integrity and Administration Act , records connected with the investigatory functions of the statutory office.

Emphasis added. The principles of statutory

interpretation [ 22 ] In order to assess the relationship between these sections and the impact of that relationship, if any, on the Appellant’s right to access the records, I begin with a review of the principles of statutory

interpretation. As stated by Green, J.A., as he then was, for the Newfoundland and Labrador Court of Appeal in Archean Resources Ltd. v . Newfoundland (Minister of Finance) , 2002 NFCA 43 , at paragraph 19 , the starting point for statutory

interpretation is

section 16 of the

Interpretation Act , R.S.N. 1990, c. I-19 .

Section 16 states: 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. [ 23 ] The

interpretation of the sections at issue must be given a “liberal construction and

interpretation that best ensures the attainment of the objects of the Act ”. It is important to not only assess the language within the impugned sections, but also consider other indicators that best ensures the attainment of the objects of the Act , and fairly resolves the dispute between the parties. In Archean , Green, J.A explained the direction of

section 16 this way: 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. [ 24 ] Some of the indicators that may assist in finding the proper

interpretation were described by Green, J.A, in the next sentence of paragraph 22: 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. [ 25 ] In College of North Atlantic v. McBreairty , 2020 NLCA 19 , the Newfoundland and Labrador Court of Appeal had the opportunity to apply the principles of statutory

interpretation specifically to ATIPPA . At paragraph 40, Green, J.A, affirmed the principles espoused in Archean as the approach to the

interpretation of ATIPPA . Although dealing with the former version of the statute, the words provide guidance to the present circumstances: [40] In the context of the Act in issue in this litigation, this Court has described the “mandated approach” as requiring the courts to go beyond the plain meaning of the words and to give it “a contextual, purposive

interpretation” (Newfoundland and Labrador (Information and Privacy Commissioner) v. Newfoundland and Labrador (Attorney General), 2011 NLCA 69 , 314 Nfld. & P.E.I.R. 305 at para. 28 ). [ 26 ] I take the above statements in Archean and McBreairty to mean that a “purposive” and “contextual”

interpretation not only takes into account the “mischief” the legislation is intended to avoid, but in so doing, includes an assessment of the surrounding text, the interrelation of other related statutes, the social and legislative context, and other “extrinsic” aids. [ 27 ] Applying the above principles, it is helpful to consider the structure of ATIPPA and where sections 30 , 33 and 41 fit within the overall scheme of the Act .

The structure of ATIPPA [ 28 ] ATIPPA is legislation that attempts to ensure the accountability of public bodies by permitting access to information by the public, while protecting not only the privacy of personal information, but particular classes of information where disclosure could undermine the proper functioning of government. In creating the balance between the objectives of access and limits to access, ATIPPA is comprehensive. The “mischief” the legislation is intended to avoid, may be seen when one considers the purposes of the Act as stated in

section 3. Section 3(1) states: 3.

(1) The purpose of this Act is to facilitate democracy through (

a) ensuring that citizens have the information required to participate meaningfully in the democratic process; (

b) increasing transparency in government and public bodies so that elected officials, officers and employees of public bodies remain accountable; and (

c) protecting the privacy of individuals with respect to personal information about themselves held and used by public bodies. [ 29 ] Division 1 of

PART II of ATIPPA provides for the rights that “ensure” access to information. In particular,

section 8, within

Division 1, states that persons have a “right” to access a record, except as stated in section 8(2) where those records are “excepted from disclosure” under the Act.

Section 9 establishes further criteria for disclosure where it is “clearly demonstrated that the public interest in disclosure outweighs the reason for the exception” and then enumerates the kinds of exceptions that are subject to an assessment of whether disclosure may be in the “public interest”. [ 30 ] The objective of “facilitating democracy” through the right to access to information held by public bodies is balanced against competing interests of the need to limit access to information. Section 3(2) illustrates the competing interests. Of relevance here is section 3(2)(c) : 3(2) The purpose is to be achieved by …. (

c) specifying the limited exceptions to the rights of access and correction that are necessary to (

i) preserve the ability of government to function efficiently as a cabinet government in a parliamentary democracy, (ii) accommodate established and accepted rights and privileges of others, and (iii) protect from harm the confidential proprietary and other rights of third parties; Emphasis added. [ 31 ] Division 2, where sections 30, 33 and 41 are located, provides for the “exceptions to access”. Division 2 contains fourteen discreet classes of exceptions; starting with “cabinet confidences”, under

section 27 through to and including exceptions for records under the House of Assembly and its related statutory offices under

section 41 . Some exceptions contain a further framework within the

section for determining when and the extent to which the exception applies to the particular class of records. Some exceptions are discretionary; while others are mandatory. Even within classes of records where a discretion may be exercised to refuse access, there may be circumstances that will qualify the exercise of discretion and instead, access will in fact be mandatory. [ 32 ] As mentioned,

section 9 of ATIPPA further qualifies exceptions to access where the public interest in disclosing the record outweighs the reasons for withholding the record. [ 33 ]

Section 30, the

section that governs records covered by solicitor-client or litigation privilege, is an example of an exception for which a discretion may be exercised by the person responsible for assessing an access request. Refusal of access is discretionary except where the records relate to solicitor-client privilege that may be enjoyed by a third party. In that case, the requirement to refuse access is mandatory.

Section 30 is also subject to

section 9 public interest disclosure assessments. [ 34 ] In contrast,

section 41 and

section 33 both represent mandatory exceptions to access. While section 33(2) will require disclosure where the person seeking the record is “a party” to the “workplace” investigation,

section 41 is absolute; without qualification.

Section 9 (whether disclosure is in the public interest), does not apply to either

section 41 or 33 . The exception under

Section 41(c) [ 35 ]

Section 41(

c) exempts access to records created as part of the investigatory functions of the House of Assembly or its statutory offices. There is no dispute that the office of the Commissioner of Legislative Standards is a statutory office under the purview of the House of Assembly. The parties also agree that the records in question are records connected with the “investigatory functions” of that office. There is no definition in ATIPPA of the phrase “investigative functions” as stated in

section 41 (c); however a review of HAAIAA , the legislation from which the Commissioner of Legislative Standards finds his authority to “investigate”, provides the necessary context. The investigation of the Appellant was triggered by a complaint made by other members under

section 36 of HAAIAA , and the authority to conduct the investigation is under

section 37 . Under

section 38 of HAAIAA the Commissioner must report his opinion to the House of Assembly and under

section 39 a recommendation may be made in the report as to the appropriate penalty if any. Under

section 40, only the House of Assembly may give effect to the recommended penalty. [ 36 ] Given that

section 41 of ATIPPA applies to such records, the answer to Issue 1 is yes: the records are exempt from access. But this is not the end of the analysis. The Appellant submits that

section 33 of ATIPPA qualifies this exemption. ISSUE 2) Does

Section 33 of ATIPPA apply to the circumstances, and require disclosure of the records? [ 37 ] Whether the mandatory access under section 33(2) qualifies the mandatory exemption from access under

section 41(

c) is the central issue in this appeal. In order to understand the relationship between

section 33 and

section 41 , if any, it is necessary to consider the purpose and nature of sections 33 . The purpose and nature of

Section 33 [ 38 ] The purpose of the exception of access in

section 33 is to protect personal information from access by others that may be sensitive to an individual who was the subject of a workplace investigation. This is in keeping with the purposes under section 3(1) (

c) of

ATIPPA. The only exception is where the person seeking access is a party, the complainant or respondent, or witness. This is logicaland still in keeping with the purposes of ATIPPA. In the case of the respondent or complainant, there is less need to protect theinformation from access, because these are the persons about whom the information relates. [39] In contrast, if a witness in the investigation seeks access, the access is limited, under section 33(3), to their own statement.

Section 33 and 41 in context [40] As stated, both exceptions under sections 33 and 41 are mandatory in nature.

Section 41 prohibits disclosure absolutelyregardless of who seeks access. The Appellant suggests that the mandatory nature of these two sections create a conflict:

section 41mandates refusal of access to the records, regardless of who seeks access, but section 33(2) requires disclosure where the person seekingaccess is a “party”. The Appellant submits that in order to resolve this conflict, the prohibition of access under

section 41 cannot applyto the records where the party who is seeking access to records of the investigation, as understood by section 33(2), is a member of thelegislature. I disagree. [41] Interpreting sections 33 and 41 must be done with a view to achieving the “harmonious” balance between the competinginterests as contemplated by the Act that fairly resolves the dispute between the parties. A purposive approach to the

interpretation of therelationship between these sections that considers the competing interests, in my view results in there being no conflict; because section33 has no application to the kinds of investigations conducted by the Commissioner of Legislative Standards. [42] Considering the sections as they occur within the Act, there is nothing to suggest that section 33(2) is necessarily paramount tosection 41 or to any of the other exceptions stated in Division II.

For example, where the complainant or respondent in a workplaceinvestigation seek access under section 33(2), it is not difficult to envisage that there may be a need to limit the access to information inorder to protect sensitive personal information of the opposing party. For example, under

section 40 of ATIPPA it may be thatinformation related to the opposing party, as a third party may be withheld from access, if it would be an “unreasonable invasion of theirprivacy”. In Oleynik v. Memorial University of Newfoundland and Labrador, 2021 NLSC 52, Noel, J. found that the mandatorydisclosure under

section 33 did not override the prohibition under

section 40 of ATIPPA. [43] This supports that there is nothing in the language of

section 33, standing alone, to render the other exceptions to access asbeing qualified by

section 33. [44] I accept that the disclosure of the records to the Appellant under section 33(2) would not likely offend the mischief that section33 intends to eliminate, insofar as the concern for protecting personal information about the Appellant from dissemination. This isbecause, as he was the subject of the investigation, there is less concern that he have access, and indeed, as section 33(2) mandates, aparty to the investigation “must” have access. [45] However, the protection of personal information is not the only concern in ATIPPA. As stated, there can be a competinginterest against disclosure.

In this case, disclosure to the Appellant under section 33(2) solely because he was a party to the investigationignores the competing interest of the House of Assembly’s ability to function properly. As stated in

section 3 of the ATIPPA, thepurpose of the exceptions are not only with a view to protecting the privacy of individuals and their personal information held by publicbodies, but also as stated in section 3(2)(c)(i), to “preserve the ability of government to function efficiently as a cabinet government in aparliamentary democracy”. That competing interest is present in these circumstances and is the basis for the absolute exception undersection 41. [46] I agree with the Respondent, that insofar as records relating to the “investigative functions” of the Commissioner forLegislative Standards are concerned, the exemption under

section 41 has its rationale in section 3(2)(c)(i), and that this rationale forexcepting access is based on legislative autonomy and the separation of powers, including the principles of what is commonly referred toas “parliamentary privilege”. When one considers the nature of parliamentary privilege, the exemption of these records under

section 41is not qualified by

section 33. The proper

interpretation of

section 33 takes into account this competing interest, and when that interest isconsidered,

section 33 has no application to investigations of members by the Commissioner of Legislative Standards. The nature of parliamentary privilege [47] The meaning and scope of parliamentary privilege was considered in Duffy v. Senate of Canada, 2018 ONSC 7523, aff'd 2020ONCA 536, leave to appeal denied 2021 CarswellOnt 1654 (S.C.C.). Mr. Duffy unsuccessfully attempted to bring a lawsuit against theSenate for malicious prosecution and misfeasance in public office; as well as several alleged violations of his rights under the CanadianCharter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11. [48] In striking the statement of claim upon application by the Senate, Gomery, J. relied on the principles of parliamentary privilegeas explained by Maingot, J. P. Joseph, Parliamentary Privilege in Canada, 2nd ed. (Montréal: McGill-Queen's University Press, 1997),as well as relying on the seminal cases from the Supreme Court of Canada: Canada (House of Commons) v. Vaid, 2005 SCC 30; NewBrunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), (SCC), [1993] 1 S.C.R. 319; andHarvey v.

New Brunswick (Attorney General), (SCC), [1996] 2 S.C.R. 876. [49] Gomery, J. summarized the essence of parliamentary privilege, at paragraph 5 of her decision: Parliamentary privilege is "the necessary immunity that the law provides for members of Parliament ... in order for these legislators to dotheir legislative work". It is recognized in our Constitution, and is a fundamental aspect of our constitutional democracy. Parliamentaryprivilege ensures that legislative bodies such as the Senate have the ability to manage their own decisions and core processes withoutinterference from the courts.

Each branch of our government must show "proper deference for the legitimate sphere of activity of theother". Former Chief Justice McLachlin offered this rationale for parliamentary privilege:

The point is not that the legislature is always right. The point is rather that the legislature is in at least as good a position as the courts,and often in a better position, to decide what it requires to function effectively.

In these circumstances, a dispute in the courts about thepropriety of the legislative body's decision, with the delays and uncertainties that such disputes inevitably impose on the conduct oflegislative business, is unjustified. [50] The application of parliamentary privilege to permit the legislature to function effectively is grounded in the principle of theseparation of powers and need to operate independently of the other arms of government.

Green, C.J.A., as he then was, in his reportRebuilding Confidence: Report of the Review Commission on Constituency Allowances and Related Matters, Commissioner: TheHonourable J. Derek Green (St.

John’s: Government of Newfoundland and Labrador, 2007), described parliamentary privilege this way: The privileges of the House as a collectivity include the right of the House to discipline Members (censure, reprimand, summoning to theBar of the House, imprisonment and expulsion); the authority to maintain the attendance and service of its Members; the power toexclude strangers from the precincts; the right to institute inquiries; the right to administer oaths to witnesses; and the right to publishpapers containing defamatory material.

When properly invoked, the effect of the privilege is to insulate the person or the institution invoking it from interference from either theexecutive or the courts. It becomes a matter for the legislature, and for the legislature alone, to deal with and regulate the matters that fallwithin the parliamentary privilege umbrella. In this regard, therefore, the application of parliamentary privilege does reflect a separationbetween the legislature and the executive with respect to certain functions. [51] The House of Assembly Act, RSNL 1990, c. H-10, adopts parliamentary privilege under

section 19:

Section 19 The House of Assembly and the members of the House of Assembly shall hold, enjoy and exercise those and similar privileges,immunities and powers that are now held, enjoyed and exercised by the House of Commons of the Parliament of Canada and by themembers of that House of Commons. [52] The privilege extends only as far as is necessary to ensure this proper functioning. As stated by Green, J. A. in BuildingConfidence, at

Chapter 2, page 7, “Legislative Autonomy is not, therefore some ritualistic incantation that can be involved unthinkinglyto justify reclusive and unfiltered action for any purpose whatsoever”. The autonomy must be grounded in it being necessary to functioneffectively. [53] It is unnecessary to explore the limits of parliamentary privilege to determine the issues on this appeal. It is relevant in thesecircumstances, that the ability of the legislature to discipline its members, is one of the core functions of the legislature that falls underthe rubric of parliamentary privilege.

As stated by Gomery, J. in Duffy at paragraph 46: 46 The Court observed that the history of the prerogative of the legislative body "to maintain the integrity of their processes bydisciplining, purging and disqualifying those who abuse them is as old as Parliament itself."32 Legislatures may discipline members forbehaviour that, in their view, undermines their fundamental integrity.

Disciplinary action may range from light sanctions for minorirregularities and expulsion for serious misconduct… [54] The Ontario Court of Appeal affirmed Gomery, J.’s decision, and the fundamental nature of the legislature’s ability todiscipline its members as part of parliamentary privilege. In explaining why the court has no authority to review the conduct of theSenate in how they handled allegations about Mr. Duffy’s conduct, M. Jamal, J.A, speaking for a unanimous court in Duffy v.

Senate ofCanada, 2020 ONCA 536, at paragraph 41 to 43, stated: 41 In Vaid, Binnie J. confirmed that "disciplinary authority over members" is an established category of parliamentary privilege thathas "historically been considered to be justified by the exigencies of parliamentary work": at paras. 29(10), 51. At para. 51, Binnie J.cited (among other authorities) Harvey v.

New Brunswick (Attorney General), (SCC), [1996] 2 S.C.R. 876 (S.C.C.),where McLachlin J. (as she then was), concurring with the majority in the result, affirmed that a provincial legislature's power todisqualify from office a member convicted of an illegal practice under provincial elections legislation involves an exercise ofparliamentary privilege, and is thus immune from judicial review: Harvey, at paras. 55, 89. 42 In Harvey, McLachlin J. noted that "[t]he history of the prerogative of Parliament and legislative assemblies to maintain theintegrity of their processes by disciplining, purging and disqualifying those who abuse them is as old as Parliament itself": at para. 64.She affirmed the "historic privilege of the legislature to deny membership to those who disqualify themselves by crime, corruption orother misconduct": at para. 74.

A matter falling within the scope of this privilege "is a matter for the legislature, not the courts, todetermine": at para. 88; see also Boulerice, at paras. 95-100. 43 Applying these principles to this case, I agree with the motion judge that the Senate's acts in investigating Senator Duffy'sexpenses as a senator, suspending him from the Senate, and taking other disciplinary measures regarding his compensation and benefits,all fall within the scope of the Senate's established parliamentary privilege to discipline its members: at para. 63.

The courts thereforehave no jurisdiction to review the Senate's grounds for exercising this privilege by investigating and disciplining Senator Duffy. [55] Given this “core function”, it is clear that the investigative function of the Commissioner of Legislative Standards as the person

charged with investigating a complaint regarding the conduct of a member falls squarely within the privilege. It must be rememberedthat the Commissioner is not the person who will implement any disciplinary measures, but carries out the investigation and makesrecommendations to the House of Assembly, as per

section 37 of HAAIAA. It is up to the House of Assembly whether therecommendations will be implemented. [56] I find support for this view of the role of the Commissioner of Legislative Standards, in Tafler v. British Columbia(Commissioner of Conflict of Interest) (1998), (BC CA), 161 D.L.R. (4th) 511, 80 A.C.W.S. (3d) 52 (B.C.C.A).

InTafler, the British Columbia Court of Appeal found that the role of the Conflict of Interest Commissioner for the House of Assembly ofthat province, including the investigative steps taken by the Commissioner in investigating whether a member was found in conflict ofinterest, fell clearly within the rubric of parliamentary privilege. At paragraph 17, Lambert, J.A., speaking for a unanimous court stated: In my opinion, the privileges of the Legislative Assembly extend to the Commissioner who is expressly made an officer of the Assemblyby sub-section 10(1) of the Members’ Conflict of Interest Act.

In my opinion, decisions made by the Commissioner in the carrying out ofthe Commissioner’s powers under the Act are decisions made within, and with respect to, the privileges of the Legislative Assembly andare not reviewable in the courts. [57] The role of the Conflict of Interest Commissioner in Tafler is analogous to the role of the Commissioner of LegislativeStandards in the present circumstances. Both are officers of the House of Assembly. Both are charged with the responsibility ofinvestigative members in relation to their conduct as a member of the House of Assembly.

Both are not responsible for the actualdiscipline to be administered, but make recommendations to the House of Assembly. The powers in the course of their investigations aresimilar, including that they have the power to subpoena persons if necessary. Further, the Commissioner for Legislative Standards isalso responsible for management of investigations of members and potential conflicts of interest under

Part II of the House of AssemblyAct. [58] The reasoning in Tafler is applicable to the present circumstances, and supports that the role of the Commissioner ofLegislative Standards in investigating complaints respecting the conduct of members falls squarely within the principles of parliamentaryprivilege. As the discipline of members constitutes a core function of the legislature, under the purview of parliamentary privilege it islogical that records related to such matters are not only mandatorily exempted from access under ATIPPA, but are not subject to publicinterest exceptions to access under

section 9 of ATIPPA. [59] This exemption is in keeping with the purposes of the exceptions as stated in section 3(2) of ATIPPA, and I agree with theRespondent that protections of parliamentary privilege to ensure that the legislature can attend to one of its “core” functions, themanagement of its members, is the “mischief” that an exemption, as stated in

section 41(c), attempts to eliminate. As a record created inthis context, it enjoys the protection of parliamentary privilege and there is no discretion regarding disclosure. As stated in the

preambleof

section 41, the Commissioner of Legislative Standards (as the “officer responsible for the statutory office” in question), “shall refuse”access to the records. Taken in its proper context, the prohibition under

section 41(

c) reflects the protection afforded the legislature byparliamentary privilege to function properly and independently of not only the other spheres of government such as the courts, but thepublic. [60] In these circumstances, as explained in Duffy, and the long line of jurisprudence upon which it relies, the necessity of ensuringthe proper functioning and independence of the House of Assembly extends to the management of its members, including discipline.This in turn extends to the independence of control over information that relates to that investigation. How the legislature manages theconduct of the members, including discipline, is not open to review. The proper

interpretation of

Section 33 [61] Given that the management of members, including discipline, is a “core” function of the legislature, and is immune fromreview by even the Courts, in my view, the proper

interpretation of

section 33 must take this into account. [62] When the

interpretation of

section 33 is viewed through this lens, in the absence of express statutory language statingotherwise, the mandatory and absolute exemption of records from access under

section 41(

c) of ATIPPA is not qualified by

section 33.As stated by Orsborn, J. in March v. Hodder, 2007 NLTD 93, at paragraph 86: An area of privilege may indeed be circumscribed by statute, but, as the authorities point out, clear wording is required to achieve this. [63] The absence of an express statement in either

section 41 or

section 33 supports that the

section 41(

c) absolute prohibition onaccess is not qualified by

section 33 (For example in contrast,

section 27 of ATIPPA, which excepts “cabinet confidences”, is subject topublic interest disclosure under

section 9). [64] Nor does the wording of

section 33, itself, support this

interpretation. To the contrary, the reference in

section 33 toinvestigations that relate to an “employee” supports that it does not apply to the investigation to the Appellant and the circumstances ofthe investigation in question. [65] I accept that the Appellant, as the person about whom the complaints were made, might fall within the meaning of “a party” toan “investigation” under

section 33, absent a consideration of the other phrases in the section. The Appellant was the person to whomthe investigation at issue here was directed. I also accept that a “public body”, as defined under ATIPPA, includes the House ofAssembly and its statutory offices.

Section 2(x)(

v) of ATIPPA, in defining “public body” is explicit:

Section 2 (x) “public body” means… (

v) the House of Assembly and statutory offices, as defined in the House of Assembly Accountability, Integrity and Administration Act,and…

[ 66 ] Given that “public body” includes the House of Assembly and its statutory offices, I also accept that a “workplace investigation” of a “public body” under

section 33 might include such investigations that occur within the space of the House of Assembly and its statutory offices. Based on that

interpretation of those components of

section 33, a “party”, here, the Appellant, to that “workplace” investigation would be entitled to disclosure. [ 67 ] However, the difficulty in applying

section 33 to an investigation of a “member” for alleged violations of the Code of Conduct is with respect to whom an investigation under

section 33 is directed. An investigation of the workplace of a public body under

section 33 targets an “employee” of the public body. There are three situations: the conduct of the employee in the workplace, for harassment, or events related to the interaction of one employee with another, or a member of the public. Each situation investigated must also be capable of “giving rise to progressive discipline or corrective action by the public body employer” in order for

section 33 to apply. [ 68 ] While the Appellant may be subject to discipline by the House of Assembly for conduct that may be in contravention of the Code of Conduct , I am not satisfied that it is within the context of an employee-employer relationship. The meaning of “employee” under ATIPPA [ 69 ] The meaning of employee as it has been interpreted under ATIPPA does not support that it includes elected members to the legislature. Nor does the meaning of “employee” as it has been interpreted under the common law support such an

interpretation. When I consider the purposes of ATIPPA , including that it limits access to information where the proper functioning of government is at stake, the extension of the meaning of employee to include elected members of the legislature is strained, at best, and not supportable. [ 70 ] ATIPPA defines “employee” under

section 2 (i), as it relates to a public body, as “includes a person retained under a contract to perform services for the public body”. Although “member” is not defined under ATIPPA , the Act nonetheless distinguishes between “elected officials” and “employees”. For example, section 3(1) (

b) of ATIPPA , in the statement of the purposes of the Act , states: 3.

(1) The purpose of this Act is to facilitate democracy through … (

b) increasing transparency in government and public bodies so that elected officials, officers and employees of public bodies remain accountable; Emphasis added . [ 71 ] The reference to “elected officials” and “employees” in the statement of purposes of ATIPPA under section 3(1) (

b) supports that the legislation distinguishes between these two categories of individuals. The distinction between “elected official”, “officer” and “employee” in the statement of the purposes of Act , also supports that for the purposes of

interpretation of the ensuing sections, a distinction is to be made between individuals under the Act that are referred to as “employees” versus an “elected official”. The distinction also supports that the extent to which there may be increased “transparency” in government may depend on whether the subject of the access request is an “employee”, “officer” or “elected official”. What may be appropriate for an employee may not be appropriate for an elected official. [ 72 ] In McBreairty , the Newfoundland and Labrador Court of Appeal considered the meaning of “employee” as defined under ATIPPA .

Although the Court of Appeal was addressing the former version of ATIPPA , the definition of “employee” is the same as the present Act . At issue in McBreairty was the extent to which someone might be considered an “employee” for the purposes of disclosing limited personal information related to their employment to a third party, Mr. McBreairty. In arriving at the meaning of employee, Green, J.A. undertook a balancing of the object and purposes of the Act as it related to the particular information sought, and the protection of that information.

While accepting that the meaning of employee had to be broad enough to give effect to the purposes of the Act , the definition was not without limit.

Green, J.A. defined employee as: [90] The language of the definition together with the “ordinary or traditional” concept of employee, encompasses both what would be traditionally described as a servant and an independent contractor. [ 73 ] Green, J.A. described this concept of ordinary or traditional employee, or “servant” as someone who has been retained by a contract “of” service, and is based on the common law understanding of an “employee” (see McBreairty , at paragraphs 59 to 68 ).

At paragraph 91, Green, J.A. limited the scope of “independent contractors” to only those who “by virtue of their contract”, can be considered a “functional cog in the institutional structure of the organization”. [ 74 ] The above scope of “employee” then includes those who are “servants”, or employees in the classical sense, and “independent contractors” whose contract for services make them a “functional cog” in the institutional structure in question.

Neither meaning of “employee” applies to the Appellant. [ 75 ] Applying the above definition to the circumstances, the Appellant is neither an “employee” in the traditional sense or an “independent contractor”. He is an elected member of the legislature. Unlike a “traditional” public servant, his tenure is not governed by the Public Service Commission Act , RSNL 1990, c. P-43 , as are most “traditional” public servants, but by HAAIAA . Likewise, the Appellant is also not an “independent contractor” as understood in McBreairty . A member is not “retained” to perform services for the

House of Assembly. He was not “selected” by the House of Assembly to serve in the legislature, but as stated, is elected to the House of Assembly. [ 76 ] The above supports that the meaning of “employee” under ATIPPA under

section 33 does not extend to the Appellant. The provisions of HAAIAA do not support that a member is an employee under

Section 33 of ATIPPA [ 77 ] Further, the language in HAAIAA supports that “employee” under

section 33 of ATIPPA does not apply to investigations by the Commissioner of a member of the House of Assembly. As explained in Archean , the examination of “related” legislation can assist the Court in finding the fair meaning of the statute in question. [ 78 ] The records created in the investigation are under the auspices of HAAIAA . Given this, it is relevant how HAAIAA refers to members and employees. In my view, an investigation of members under HAAIAA for violations of the Code of Conduct is a different arena and focus than investigation into the conduct of “employees” within the “workplace” of “public bodies,” as stated in

section 33. [ 79 ] The kinds of conduct that might result in a violation of the Code of Conduct are broad. In this case, the violation that was found related to principle 5, which states: Members will not engage in personal conduct that exploits for private reasons their positions or authorities or that would tend to bring discredit to their offices. [ 80 ] The Code of Conduct is not only broad in the obligations it establishes for members, it is an aspirational statement for how members should conduct themselves. This is supported by

section 35 of HAAIAA which establishes the Code of Conduct .

Section 35 refers in its

preamble to adopting a code of conduct “for members to assist members in the discharge of their duties to the House of Assembly, their constituents and the public at large.” Section 35(1) refers to the Code of Conduct as providing “guidance” on standards of conduct for a member. Section 35(2) states that the Code of Conduct is to be treated as “the standard against which the actions of a member may be judged”. This aspirational aspect is also evident from the

preamble of the Code of Conduct itself: Members of this House of Assembly recognize that we are responsible to the people of Newfoundland and Labrador and will responsibly execute our official duties in order to promote the human, environmental and economic welfare of Newfoundland and Labrador. [ 81 ] Under principle #2 of the member’s Code of Conduct : It is a fundamental objective of their holding office that Members serve their fellow citizens with integrity in order to improve the economic and social conditions of the people of the province”.

Emphasis added. [ 82 ] It should be noted that the fundamental objective under principle #2 also refers to the elected official “holding office”; not employment. [ 83 ] Principle #11 also illustrates the aspirational aspect to the Code of Conduct : “Members should promote and support these principles by leadership and example”. [ 84 ] This aspirational scope of the Code of Conduct supports that if an investigation occurs for “failures” by a member in adhering to same, it is not an inquiry that is in the context of an employer-employee relationship. [ 85 ] Further, within HAAIAA itself, there is a different statutory

section for inquiries into the conduct of an “employee” employed by the House of Assembly under

section

Section 34 of HAAIAA states: 34.

(1) The speaker may inquire into the conduct or fitness of a person employed by the House of Assembly upon a complaint made to the speaker of misconduct or unfitness of that person.

(2) Where it appears to the speaker following an inquiry under subsection (1) that an employee has been guilty of misconduct or is unfit to continue his or her employment, the speaker may suspend the employee and shall report the suspension (

a) to the Lieutenant-Governor in Council in the case of a person appointed by the Crown; or (

b) to the commission where the person has not been appointed by the Crown. [ 86 ] That there is a provision under HAAIAA for the Speaker of the House to investigate the conduct specifically of an “employee” of the House of Assembly supports that the investigations of a member under

section 37 , for alleged violations of the Code of Conduct , is not an investigation of the conduct of an employee, as contemplated by

section 33 of ATIPPA . [ 87 ] Further, similar to the distinction between “elected official” and “employee” in ATIPPA , HAAIAA distinguishes between “employee” and “member”. Although employee is not defined in the initial definition section, member is defined under

section 2 (m). Under section 55(1) and

section 62 of HAAIAA , “member” and “employee” are distinguished.

[ 88 ]

Section 55 is within

PART VI of HAAIAA , and is the

section that permits disclosure of wrongdoing, or disclosures in the public interest; (sometimes commonly referred to as “whistleblower” legislation). Employee is defined in this PART, under section 54 (1): Section 54(1)… (b) “employee” means a member of the public service of the province and includes an officer of the House of Assembly and a person employed in the House of Assembly service or a statutory office [ 89 ]

Section 55 explicitly refers to either an “employee” or “member” having the ability to so make a “public interest” disclosure. Section 55(1) states: 55.

(1) An employee or a member who reasonably believes that he or she has information that could show that a wrongdoing has been committed or is about to be committed may make a disclosure to his or her supervisor, the clerk, a member of the audit committee chosen under paragraph 23 (2)(b), or the investigator.

(2) A disclosure made under this

section may be made orally or in writing and shall include, if known, (

a) a description of the wrongdoing; (

b) the name of the person alleged to (

i) have committed, or (ii) be about to commit the wrongdoing; (

c) the date of the wrongdoing; and (

d) whether the wrongdoing has already been disclosed and a response received.

(3) An employee or a member may make a disclosure even where another Act or regulation prohibits disclosure of that information.

(4) Notwithstanding subsection (3), nothing in this Part authorizes the disclosure of information that is protected by solicitor-client privilege.

(5) Where a disclosure involves personal or confidential information, the employee shall take reasonable precautions to ensure that no more information is disclosed than is necessary to make the disclosure. Emphasis added [ 90 ] Similarly,

section 62 distinguishes between employee and member.

Section 62 states: 62 . Where a supervisor, the speaker, the clerk or the investigator is of the opinion that it is necessary to further the purposes of this Part, he or she may, in accordance with the rules, arrange for legal advice to be provided to employees and members involved in a process or proceeding under this Part. Emphasis added [ 91 ] These explicit distinctions in HAAIAA between employee and member supports that these distinctions are deliberate. This distinction in turn supports that the

interpretation of the “employee” in

section 33 of ATIPPA does not extend to investigations conducted by the Commissioner of Legislative Standards under HAAIAA , because a “member” is not an “employee”. The Appellant is not an employee as understood in the common law [ 92 ] Nor does the analytical approach to determine whether a person’s status as an employee at common law assist the Appellant in bringing himself within the confines of

section 33 . [ 93 ] I accept that there are circumstances at common law where an “elected” official has been considered an employee in particular contexts. For example, the Appellant provided Ferguson v . B.C.N.U., 2005 BCSC 982 . Ms. Ferguson, a nurse, was elected as President of her union. She was deemed an employee by the Court, for the purpose of bringing a wrongful dismissal suit against the Executive of the union. In so finding, of concern to the court was the level of “control” exercised by the union council over Ms. Ferguson in her role as President.

At paragraph 57, the court stated that the question is whether the entity is entitled to direct how the employee is to do their work and then considered several factors:

57 I accept as accurate the statement of Macaulay J. in B.M. v.

Mumford (2000), 84 B.C.L.R. (3d) 146, 2000 BCSC 1787, a case ofvicarious liability, where he said this at paragraphs 23-25 about the determination of whether a person is an employer: The criteria for determining whether an entity is an employer stem primarily from employment law and generally include whether theentity: (1) exercises direction and control over the employees; (2) bears the burden of remuneration; (3) imposes discipline; (4) hires the employees; (5) has authority to dismiss the employees; and, (6) is perceived to be the employer by the employees.

The test is whether the alleged employer had the power of selecting, controlling and dismissing the alleged employee. See Robitaille v.Vancouver Hockey Club Ltd. (1979), 19 B.C.L.R. 158 (S.C.), affirmed (BC CA), [1981] 3 W.W.R. 481 (B.C.C.A.). InHokanson v. S.M.W., Loc. 280 (1985), (BC SC), 12 C.C.E.L. 231 (B.C.S.C.), Spencer J. referred to the above test withapproval.

Control, sometimes referred to as "overriding control" is an important factor in determining the existence of the employer-employeerelationship and requires the court to consider the substantive aspects of the relationship rather than just the structure. The House ofLords suggested that the appropriate question to ask is "who is entitled to tell the employee the way in which he is to do the work uponwhich he is engaged." See Mersey Docks & Harbour Board v. Coggins & Griffiths (Liverpool), L.D., [1947] A.C. 1 (H.L.) at 17,approved in Trans-Canada Forest Products Ltd. v.

Heaps, Waterous Ltd., (SCC), [1954] S.C.R. 240 at 256. In otherwords, does the entity control the means of doing the work or, as considered in Trans-Canada Forest Products Ltd. at 256, is it "entitledto give the orders as to how the work should be done"? [94] Applying the test in Ferguson, the Appellant, in my view, does not meet the threshold to be an employee, for similar reasons asdiscussed above as per McBreairty. The Appellant was not “hired” or “retained”, or even “selected” by the purported employer, theHouse of Assembly, but was elected by a majority of his constituents.

As well, neither the House of Assembly nor the Office of theCommissioner for Legislative Standards is responsible for the Appellant’s remuneration. His salary is established by statute underHAAIAA and is paid directly from the Consolidated Revenue Fund as per

section 17. [95] In terms of directing the Appellant in his work, it is important to remember that a member does not “work” for the House ofAssembly, but serves in the House of Assembly on behalf of his constituents.

The Appellant may have had responsibilities as a memberof the political party to which he or she belongs, and have obligations to the House of Assembly as a member of that body, but his duty isalso to his constituents and the public. [96] There is no dispute that there is a degree of control exercised by the House of Assembly over the Appellant by way of potentialdiscipline for violations of the Code of Conduct. I also accept that in some situations the control may extend to effectively removing amember from the House of Assembly.

Section 39 of HAAIAA gives the House of Assembly the authority to consider progressively moresevere penalties – including having the seat of the member declared vacant. However, no such measure can take effect without a reportbeing labeled with the House of Assembly, and “concurred in by resolution of the House of Assembly” under

section 40 of HAAIAA. [97] When I balance the considerations in Ferguson, I am not satisfied that this degree of control by way of discipline tips thebalance in favour of finding that the Appellant is an “employee” as understood in Ferguson, and other wrongful dismissal cases for thepurposes of determining whether the Appellant should be entitled access to information under

section 33 of ATIPPA. [98] There is control, but the ultimate “control” as to a member’s tenure as an elected official may be what happens at the ballotbox. As stated by David Harris in his text Wrongful Dismissal, vol. 1 (Toronto: Thomson Reuters, 2019), at page 2-49: It should be noted, however, that officials elected by larger and more diverse groups of persons are more likely to serve in a “political”than an “employment” capacity.

As such, these individuals owe the longevity of their service to the expressed will of the electorate, andare apt to be removed precipitously, and without recourse, if and when that will changes. [99] Finally, there was no evidence before me that the Appellant viewed his relationship with the House of Assembly as anemployer-employee relationship. [100] The approach in Ferguson does not support that the Appellant was an employee. [101] Given the above lack of support in the common law for extending the meaning of “employee” to a member of the legislature, thefact that HAAIAA specifically distinguishes between employee and member, as does ATIPPA, in my view, the proper

interpretation ofemployee under

section 33 does not extend to members of the legislature.

[102] To interpret

section 33 as capable of qualifying the absolute prohibition of access under

section 41(

c) because the meaning of“employee” extends to an elected official, not only stretches the meaning of employee beyond its natural meaning as understood withinthe common law, but creates a conflict with the use of the term within other parts of ATIPPA and HAAIAA, and ignores the fundamentalinterest of parliamentary privilege. [103] For these reasons, in my view, the investigatory function of the Commissioner of Legislative Standards for alleged violations by amember of the Code of Conduct does not fall within the purview of “workplace investigation” as contemplated by

section 33 of ATIPPA.

Section 33 has no application to the circumstances, and does not override the absolute mandatory prohibition on access of

section 41. [104] While not detailed in his written arguments, at the hearing of the appeal, there was discussion as to whether excluding theAppellant from accessing the complete records arising from the investigative functions about which he was the subject, results in anunfairness and may constitute a breach of natural justice. Unlike the circumstances in March v.

Hodder, this was not pursued in detailby the parties, so I am inclined to refrain from addressing the scope of this basis for finding that the Appellant should be entitled access. [105] However, I make the following observations. [106] The Appellant, as an elected official may be treated differently than an employee who is investigated in a manner to which section33 applies, but that difference is not necessarily an unfair treatment. As an elected official, the Appellant enjoys privileges not enjoyedby regular employees; for example, freedom of speech within the House of Assembly.

With those privileges also come duties andsacrifices. As stated by Green, C.J.A., at page 13 of Rebuilding Confidence: Service as an elected member in a representative assembly is, and should be, one of the highest callings to which a person can aspire in ademocratic society. It is a vocation that is unlike virtually any other. It provides great opportunities for public service and for thepossibility of having a direct influence on important issues at the centre of public affairs. Yet it also calls for considerable personalsacrifice and, in some cases, financial sacrifice as well.

In short, it requires a special sort of person. Those who offer themselves forpublic office and who meet the high standards expected of them deserve commendation, not condemnation. [107] In my view, given that the independence of the legislature in the management of their members is a core function underparliamentary privilege, the exclusion of a “member” from

section 33 of ATIPPA is a necessary limit on the right to access informationunder

section 41(c). The limit on access to information under

section 41(

c) to persons, including members, is in keeping with otherlimits placed on members who challenged the authority of their respective legislative bodies. [108] In March v. Hodder, this Court declined judicial review of whether or not Mr. March was denied procedural fairness in beingremoved from his post as the Citizen’s Representative; on the basis that those proceedings fell within the sphere of parliamentaryprivilege.

As seen in Duffy, the principles of parliamentary privilege precluded recourse to the courts by a member to challenge or reviewhow the legislative body handled matters relating to that member’s conduct. Similarly, in Tafler, the principles of parliamentaryprivilege precluded access by the public to the investigatory process used by the legislature to investigate a member. [109] Lavigne v. Ontario (Attorney General) (2008), (ON SC), 175 A.C.W.S. (3d) 740, 91 O.R. (3d) 750 (Sup. Ct.B.C.) is also instructive. Mr. Lavigne was being investigated by a subcommittee of the Senate.

He applied to the Court for disclosure oftranscripts of testimony related to that investigation to use in mounting his defence in his criminal trial. He was denied access to thetestimony on the basis of parliamentary privilege; notwithstanding that the disclosure was relevant, and denial of this access would limithis ability to defend himself against the charges. These rights were not paramount to the right of the Senate under the rubric ofparliamentary privilege to control the dissemination of information as to how it conducted its proceedings - including the investigation ofMr. Lavigne.

The importance of permitting the witnesses to speak freely at such hearings outweighed the right of Mr. Lavigne todisclosure. [110] The above are examples of the Court declining to exercise jurisdiction over the matter on the basis of an aspect of parliamentaryprivilege: denying judicial review, denying a member pursuit of a statement of claim, or denying the member disclosure of a testimony toaid in defending a criminal allegation.

There was no issue as to the “unfairness” of these outcomes regarding the application ofparliamentary privilege. [111] The circumstances in Lavigne are similar to the present circumstances insofar as the Appellant is seeking similar relief as wassought in Lavigne: access to information that is otherwise covered by a prohibition on disclosure because of parliamentary privilege. Given the circumstances in Lavigne, I see less basis for stretching the meaning of employee to facilitate an access to information requestunder

section 33 of ATIPPA on some undefined notion of unfairness in these circumstances. [112] It is not as if the Appellant had no notice, or an opportunity to respond to, or access to, disclosure about the investigation. UnderHAAIAA there is an established regime for ensuring the member who is investigated receives notice of the complaint. The Appellant wasentitled to receive a copy of the complaint, and he has received this, as well as the report of the Commissioner. The Report of theCommissioner, which was filed with this Court, is detailed as to the investigative process and outcomes.

In other words, the House ofAssembly has determined, by way of this legislation, the level of disclosure available to the member in this type of investigation underHAAIAA. For example, section 37(2) states: 37.

(2) Where the commissioner conducts an inquiry under subsection (1), he or she shall give the member to whom the inquiryrelates a copy of the request and at all appropriate stages throughout the inquiry the commissioner shall give the member reasonableopportunity to be present and to make representations to the commissioner in writing or in person or by counsel or other representative. [113] Also

section 42 gives the Commissioner of Legislative Standards the authority to determine the level of disclosure to a memberwith no “failure” in his or her obligation towards the Code of Conduct. [114] Given this, and that parliamentary privilege precludes any review by the Court as to the investigation and outcomes, it is unclearwhat would be the purpose in obtaining further disclosure than already permitted under HAAIAA.

[115] For this reason, I see no unfairness to the Appellant, but instead see the refusal of access under ATIPPA as the proper balancebetween the right to access information, and the need to limit access to information where the principles of parliamentary privilegegovern the information sought. [116] Further, I agree with the reasoning in Lavigne, that in having found that parliamentary privilege applies to the information undersection 41(

c) of ATIPPA, it is not for the Court to re-assess how that privilege was exercised. While it is the purview of the Court in anappeal under ATIPPA to decide whether or not an exception applies to information sought, including an exception that gives effect toparliamentary privilege, once having so decided that this exception applies, that is the end of the review. That is to say, having beensatisfied that

section 41(

c) as it applies to records in question is a reflection of the application of parliamentary privilege, it is not for theCourt to go further. As stated in Lavigne, at paragraph 48, once the privilege is established, “that is the end of the dispute”. [117] As also stated by Orsborn, J. in Hodder at paragraph 72: 72 To contemplate that a court could review the procedure followed by and the information laid before the House when consideringa resolution such as this would be to countenance a severe affront to the dignity and efficiency of the House.

The House could notfunction if it were subject to judicial sanction in such circumstances. [118] The procedure here includes a denial of access to certain information. For all of the above reasons, I am satisfied that

section 33in no way qualifies the absolute prohibition of disclosure of records under

section 41(

c) of ATIPPA. [119] The answer to Issue 2 is no. ISSUE 3) Does solicitor-client privilege apply to the records, as per

Section 30 of ATIPPA? [120] Having decided that the records requested by the Appellant are exempted from disclosure by virtue of

section 41(

c) of ATIPPA, itis unnecessary to determine whether the records may be exempted from disclosure under section 30(1) of the Act. [121] While the nature of the appeal is that the Court assesses the claims of the Respondent de novo, and in so doing the Court mayreview the records (see Newfoundland and Labrador (Information and Privacy Commissioner) v. Eastern Regional Integrated HealthAuthority Information, 2015 NLTD(G) 183, per Orsborn, J.), in my view, given the nature of solicitor-client privilege, before exercisingits authority the Court should determine whether such an exercise is necessary.

There is a principle of restraint in dealing withinformation that may be protected by solicitor-client privilege. As stated by Lamer, J. (as he then was) in Descouteaux v. Mierzwinski, (SCC), [1982] 1 S.C.R. 860, in describing the principles of solicitor-client privilege as a substantive rule stated atparagraph 27: 27. It would, I think, be useful for us to formulate this substantive rule, as the judges formerly did with the rule of evidence; it could,in my view, be stated as follows: 1.

The confidentiality of communications between solicitor and client may be raised in any circumstances where such communicationsare likely to be disclosed without the client's consent. 2. Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person'sright to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting theconfidentiality. 3.

When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with thatconfidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to notinterfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation. 4. Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpretedrestrictively. [122] It is true that in reviewing the records, as per

section 58 of ATIPPA, the application of solicitor-client privilege is not affected.However, as it is unnecessary to determine whether the records are protected by solicitor-client privilege to resolve the appeal, in myview the better course is to not so do. It is in keeping with the principles above and the approach of restraint. CONCLUSION [123] Pursuant to

section 60 of the Act the appeal is dismissed. The records sought and exempted from disclosure under

section 41(c)of ATIPPA shall remain under seal until returned to the Respondent. This being the case, there is no need to assess whether the recordsmay also be exempt from disclosure under

section 30 of ATIPPA. As suggested by the Respondent and the Intervenor, while theRespondent was the successful party, given the public interest in the Court addressing the

interpretation of

section 41 and records thatrelate to the investigative functions of the Commissioner of Legislative Standards, there shall be no order as to costs. [124] It is hereby ordered that:

a. The appeal is dismissed; b. The copy of the records filed and sealed with this Honourable Court is returned to the Respondent; and c. There is no order as to costs. _____________________________ Frances J. Knickle Justice