Anton Oleynik Applicant And: Gary Kachanoski, PRESIDENT v. Vice-Chancellor of Memorial University of Newfoundland and Labrador, 2021 NLSC 99

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLSC 99 Date : July 15, 2021 Docket : 201901G5833 Between: Anton Oleynik Applicant And: Gary Kachanoski, PRESIDENT AND Vice-Chancellor of Memorial University of Newfoundland and Labrador Respondent And: Michael Harvey, in his capacity as the information and privacy commissioner of newfoundland and labrador Intervenor Before: Justice Glen L.C. Noel Edited Transcript of Oral Reasons for Judgment Place of Hearing: St.

John’s, Newfoundland and Labrador Date of Hearing: July 13, 2021 Date of Oral Judgment: July 13, 2021 Appearances: Anton Oleynik Appearing on his own behalf

Stephen F. Penney and G. John Samms Appearing on behalf of the Respondent Andrew A. Fitzgerald Appearing on behalf of the Intervenor Authorities Cited: CASES CONSIDERED: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23; Oleynik v. Memorial Universityof Newfoundland and Labrador, 2021 NLSC 51; Compton v. Toyota Canada Inc., 2019 NLCA 79; Oleynik v. Memorial University ofNewfoundland, 2021 NLCA 40; Oleynik v. Memorial University of Newfoundland and Labrador, 2021 NLSC 4; Hynes v. WesternRegional Health Authority, 2018 NLSC 164; Young v. Young, (SCC), [1993] 4 S.C.R. 3; Tremblett v.

Northern Arm(Town), 2021 NLSC 98 STATUTES CONSIDERED: Access to Information and Protection of Privacy Act, 2015, S.N.L. 2015, c. A-1.2 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Noel, J.: INTRODUCTION [1] Dr. Oleynik seeks leave to admit expert evidence in three proceedings, 201901G5833, 201901G7928 and 202001G3967. [2] I am ruling the expert reports of Christopher Harris are inadmissible.

Here are my reasons. background [3] Oleynik determined that the internet headers (metadata) of two produced documents, the emails sent by Rosemary Thorne, theUniversity Access and Privacy Advisor of Memorial University of Newfoundland and Labrador (Memorial) on 9 and 10 September 2019(the “Emails in Issue”) had been removed. He submits that the integrity of those documents is compromised (at para. 18 of Oleynik’swritten 30 April 2021 submission). [4] On 16 November 2019, I granted Oleynik leave to file the expert reports of Harris, and I gave Memorial and the Intervenorleave to challenge their admissibility.

Memorial objects to the admissibility of the reports because the Emails in Issue with BCC and theidentity of the BCC have been provided to Oleynik. Memorial argues that the expert reports are irrelevant to and unnecessary for theissues to be decided on the judicial review and the two appeals in question. issue [5] The sole issue is the admissibility of the expert reports. applicable legal test [6] The parties agree on the legal test for admissibility of expert reports. [7] The leading authority is the Supreme Court of Canada decision in White Burgess Langille Inman v.

Abbott and HaliburtonCo., 2015 SCC 23. [8] At paragraph 23, the proponent of the evidence, in this case Oleynik, must establish the threshold requirements ofadmissibility. These are the four Mohan factors: 1. Relevance; 2. Necessity; 3. Absence of an exclusionary Rule; and 4. A properly qualified expert. [9] Relevance at this threshold stage refers to logical relevance. Evidence that does not meet the threshold requirements must beexcluded.

[ 10 ] Justice Cromwell in White Burgess (at para. 24) noted a second discretionary gatekeeping step. I am to balance the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justifies the risk. [ 11 ] So even if I were to determine the expert evidence is relevant, reliable, and necessary, I must still consider the effect that the admission of the expert evidence will have on the “consumption of time, prejudice, and confusion” to the judicial review and appeal proceedings.

In other words, the Harris reports cannot be admitted if the prejudicial effect outweighs the beneficial value to the litigation process. analysis [ 12 ] I reject Oleynik’s submission (at para, 55 of his brief) that in the context of a

summary trial, such as in the ATIPPA -related matters ( Access to Information and Protection of Privacy Act, 2015 , S.N.L. 2015, c. A-1.2 ), the Court should generally not engage in the second step cost-benefit analysis.” Let me explain why. [ 13 ] The comments of Cromwell J. (at para. 55) related to a

summary judgment motion and the Nova Scotia rules pertaining to the

summary judgment regime in Nova Scotia. He explained it is not the role of a judge hearing a

summary judgment motion in Nova Scotia to weigh the evidence, draw reasonable inferences from evidence, or settle matters of credibility. [ 14 ] First of all, I must point out we are not dealing with a

summary judgment application under Rule 17 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D . In 201901G5833, we have a judicial review and 201901G7928 and 202001G3967, appeals.

Section 57 of the ATIPPA states the practice and procedure governing expedited trials (Rule 17A.09) shall apply to appeals.

Section 59 states the court shall review “as a new matter” the decision, act, or failure of the public body that relates to a request for access to a record . Mr. Fitzgerald, in his submission, stated the ATIPPA is about getting access to records. [ 15 ] Dr. Oleynik, in his oral submissions, referred to s, 3(1)(

a) of the ATIPPA and noted that the purpose is to ensure “citizens have the information required to participate meaningfully in the democratic process.” I note that s. 3(2)(

a) of that legislation states “the purpose is to be achieved by giving the public a right of access to records .” (emphases added) [ 16 ] Secondly, the very essence of Oleynik’s wanting to admit expert evidence is, as Harris opines (at para. 8 of his report), the discrepancies between the Emails in Issue (the removal and reappearance of the metadata and the simultaneous disappearance of BCCs) could not have occurred as a result of utilizing industry standard document management software. [ 17 ] The only purpose of the opinion is to attack the explanation and veracity of Memorial’s counsel Ms.

Koren Thomson regarding the email she sent to Oleynik on 25 May 2020. She wrote, in part: “[a]ny minor changes in metadata occurred automatically when imported into and/or exported from our document management software and produced to you.” [ 18 ] The opinion bears no logical relevance to the issue I have to decide in the judicial review of 201901G5833, or the appeals of 201901G7928 and 202001G3967.

The opinion is also unnecessary and a waste of the Court’s time for the issues raised by Oleynik’s pleadings. [ 19 ] Before I go on to deal more fully with why the expert opinion is not relevant or necessary, I want to say something about Justice Hurley’s prior ruling in the 201701G6218 matter on 28 March 2018 that Oleynik relies heavily upon in his submissions, at paragraph 70 and 71. Hurley J. admitted the expert opinion of Harris into evidence in that proceeding.

Unlike for Justice Hurley, the issues are now well defined by the pleadings and submissions. (See transcript of the ruling is at pages 36 – 39 filed in Oleynik’s Affidavit of 30 April 2021.) [1] [ 20 ] Justice Hurley’s opinion is quite distinguishable from what I am deciding. I am case managing a multiplicity of proceedings that Oleynik has brought before this court. [2] [ 21 ] A couple of things I want to specifically note that are different about Hurley J.’s ruling: 1. I have a separate application before me on the admissibility of the reports. 2.

I know the issues I have to decide, and do not have the same concern as Hurley J. as to “whether it’s really relevant at the end of the day.” [ 22 ] Furthermore, my gatekeeping role as laid out by the Supreme Court of Canada mandates that I determine whether threshold admissibility has been established. It is not simply a matter of me letting the reports in and considering what weight to give to the reports.

That would constitute an error of law. memorial’s submission on relevance and necessity [ 23 ] I am persuaded by Memorial’s submissions on the inadmissibility of the expert opinion. [ 24 ] The issues in the three subject proceedings will not require me to determine whether metadata was altered, or a BCC line removed, incidentally or otherwise, from the Emails in Issue, or the new copies provided to Oleynik on 25 May 2020. 201901G5833 [ 25 ] Memorial points out the allegations of metadata and the BCC in the Emails in Issue are not pled in the Amended Originating Application. [ 26 ] Memorial has identified at paragraph 56 of its Brief, the issues for determination. [ 27 ] If I accept Memorial’s argument that the judicial review Application ought to be denied because there are adequate remedies

for Oleynik, then there would be no need to consider the Emails in Issue. [ 28 ] Should I fail to accept the alternative remedies argument, the Emails in Issue with BCC have now been provided to Oleynik, and there would be no practical effect of ordering Memorial to conduct a further search for responsive records. [ 29 ] The Court’s consideration of what happened with the deletion of the BCC is not relevant to the Court’s determination of whether the anonymity requirement under s. 12 was complied with. 201901G7928 [ 30 ] Oleynik seeks an order requiring Memorial to search for records responsive to the disregarded requests. [ 31 ] Memorial notes that whether the metadata in the Emails in Issue was modified, is not pled in the Notice of Appeal. [ 32 ] The issues for consideration, noted at paragraph 67 of Memorial’s Brief, do not require consideration of the issue of anonymity.

In any event, in my Rule 38 ruling, Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLSC 51 at para. 114 , I concluded there is no statutory right of appeal under either s. 12 (anonymity) or s. 64 (protection of personal information) of the ATIPPA . The reason for the removal of the BCC line is not relevant or necessary to address the reasonableness of the searches conducted. 202001G3967 [ 33 ] I have already determined in the Rule 38 ruling (at para. 64) that I will not be referring Oleynik’s allegations of alteration of records to the Director of Public Prosecutions.

The Harris report is therefore not relevant to ground a request for referral for prosecution. [ 34 ] As for the release of records in native format, that determination can be made without the expert opinion. The report is not relevant or necessary to allow for a determination of the appeal issues. Second Stage Discretion [ 35 ] On the second stage of the White Burgess analysis, I retain discretion to exclude the expert opinion that otherwise meets the threshold requirements ( Compton v. Toyota Canada Inc. , 2019 NLCA 79 , at para. 28 ).

I find the risk to the litigation process exceeds the benefits of admission of the expert opinion. [ 36 ] Let us step back to what Oleynik’s litigation is really about. Oleynik himself says at paragraph 9 of his written submissions that he is seeking records in preparation for his arbitration “to know the case to be met.” Welsh, J.A. recently recognized this in her ruling in Oleynik v.

Memorial University of Newfoundland , 2021 NLCA 40 , on 30 June 2021 (Directions Decision) when she stated (at para. 5) all requests for records and appeal decisions “are related to the arbitration proceeding, even though they are being pursued individually, and separately from that proceeding. The requests are a means of obtaining, or seeking to obtain evidence for purposes of the arbitration.” [3] [ 37 ] The efforts Oleynik is making in this Court to introduce expert evidence goes far beyond the scope of a judicial review that ought to be confined to the Record: Oleynik v.

Memorial University of Newfoundland and Labrador , 2021 NLSC 4 , at para. 34 (Interrogatories Decision). There is no evidence before me that the expert opinion is necessary to supplement the record. It runs the risk of turning the judicial review into a further complicated and time-consuming proceeding. [ 38 ] I am mindful that the 201901G5833 matter is just one of a multiplicity of proceedings Oleynik has before this Court. He is entitled to access to justice, but his access to justice is not unlimited and unrestrained.

He is not entitled to have every complaint that he has aired in Court, unless it goes to resolving the real issues in dispute. [ 39 ] In regard to the two appeals, the hearings are expected to be expedited in furtherance of the ATIPPA purpose of “timely” access to information. The admission of the Harris opinion would result in increased resources to adjudicate what should be relatively straightforward matters.

It would undermine the principle of proportionality that I have previously adjudicated upon, and had indicated should be at all times what guides the parties in this litigation (Interrogatories Decision at para 37). Oleynik has gotten more court time and resources than can be rationally justified in the administration of justice. I am not prepared to allow him to take more court time than is justified for a timely and fair resolution of production of necessary records. [ 40 ] Since Oleynik relies on Justice Goodridge’s decision in Hynes v.

Western Regional Health Authority , 2018 NLSC 164 , I do want to say something about that authority. [ 41 ] Firstly, it did not involve the ATIPPA . It dealt with a pre-trial application to decide on the admissibility of opinion evidence for a pending trial. The trial was to determine liability and damages from a privacy breach involving the plaintiff’s medical records. The matter was certified as a class action.

The common issues identified in the Certification Order were the standard of care owed by the defendant to the plaintiffs in protecting the privacy of electronic medical records. [ 42 ] Secondly, Goodridge J. failed to allow the plaintiff’s expert Dr. Keenan to testify on computer operating systems and servers, among other things, because the purported expert opinion was not logically relevant to an issue at trial. [4] [ 43 ] Thirdly, Goodridge J. did allow Mr. MacPherson to provide expert testimony on health information systems and standard practices among health authorities.

I reject Oleynik’s submission that the ruling in Hynes is of any assistance to him on this application. Memorial’s Expert Report [ 44 ] In light of my ruling on the inadmissibility of the Harris reports, there is no need for Memorial’s rebuttal expert report, or for me to address its admissibility in these proceedings.

Costs [45] I am ordering costs against Oleynik for a one-day hearing. The actions of Oleynik in bringing this application for theadmission of expert evidence do not approach the level of “reprehensible, scandalous or outrageous conduct” so as to order solicitor andclient costs, as sought by Memorial (Young v. Young, (SCC), [1993] 4 S.C.R. 3) McLachlin J. at paragraph 260. [46] Oleynik will pay taxed costs to Memorial on a Column 4 basis. The application ought not to have been pursued in light of mycomments in the Interrogatories Decision, at para. 52. I also refer to my recent decision in Tremblett v.

Northern Arm (Town), 2021NLSC 98, where I ordered Column 4 costs against a self-represented litigant. [47] The costs will not include recovery of Memorial’s expert report. [48] I am serving notice there will be escalating cost consequences going forward for applications and appeals that are unnecessaryfor a fair determination on matters in dispute, and that I determine have been pursued unreasonably. order [49] Mr. Penney and Mr.

Samms will draft the Order regarding dismissal of this application for my endorsement. [50] The Order will state: 1) Oleynik’s application in 201901G5833, 201901G7928 and 202001G3967 for admission of expert testimony is dismissed withcosts to Memorial to be taxed on Column 4 for a one-day hearing. 2) Memorial shall not have its costs for the retention of its own expert opinion.

Addendum [51] Oleynik insisted that he receive and have the opportunity to review a transcript of this oral decision before he takes any furthersteps in his proceedings. [52] As a result the parties and the Court lost the benefit of three further hearing days previously scheduled for the remainder of theweek 13 July. Two days would have been assigned for cross-examination of experts but having ruled on the inadmissibility of the expertopinions, those days were not needed.

Oleynik refused to proceed with his Application to cross-examine Memorial’s affiants in201901G7928 set for 16 July and the Case Management Meeting scheduled for that day, or to move up the hearing day and CaseManagement Meeting to 15 July. The parties will have leave to speak to costs on Oleynik’s failure to proceed with scheduled matters. [53] The next CMM will be on 13 September at 10:00 a.m. The parties have been instructed to provide their agenda items for casemanagement by 31 August. [54] There are three further days scheduled on 15 September, 13 and 14 October for hearing dates in the proceedings.

The partieshave been put on notice the Court will not be in a position to provide further hearing dates in 2021. As it currently appears from theCourt calendar, any further hearing dates required will be well into 2022. [55] Finally, for clarification, the Order on costs (at para. 50, above) includes one counsel only. ____________________________ GLEN L.C. NOEL Justice