Anton Oleynik Applicant And: Memorial University of Newfoundland v. Labrador, 2021 NLSC 51

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLSC 51 Date : April 14, 2021 Docket : 202001G2986 Between: Anton Oleynik Applicant And: Memorial University of Newfoundland and Labrador Respondent And: Michael Harvey , in his capacity as THE INFORMATION AND PRIVACY COMMISSIONER OF NEWFOUNDLAND & LABRADOR Intervenor Before: Justice Glen L.C. Noel Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 22, 23, and 24, 2021 ( Virtual )

Summary:

Memorial University applied to have preliminary questions of law determined by Rule 38, in related access to information Appeals ofAnton Oleynik under the Access to Information and Protection of Privacy Act. The Court held: (

i) Whether the extraordinary circumstances threshold under

section 24 was satisfied is not appealable under the Act. (ii) Whether a record ought to have been created under the Management of Information Act or Memorial’s policies is notappealable under

section 54 of the Act. (iii) The duty to assess in

section 13 of the Act is appealable under

section 54. The relevant Appeals will require an assessment of theparticular evidentiary record for the Court’s determinations on the reasonableness of Memorial’s effort to respond to the access requests. (iv) The Court has no jurisdiction on an appeal under the Act to refer Oleynik's allegations of alteration of records to the Director ofPublic Prosecutions. (

v) Whether the Court may order Memorial to notify Oleynik of the disposal date of certain emails is for consideration on theevidence and submissions in the subject Appeal. (vi) There is no remedial authority under the Act to order Memorial not to break down a request into separate requests without firstconsulting with applicants. (vii) All relevant information created or gathered for a workplace investigation in Section 33(3) does not override the solicitor-clientand litigation privilege in

section 30 of the Act. Whether section 33(3) is paramount to all other exceptions to access enumerated in theAct is not appropriate for Rule 38 determination and is for resolution on the evidence and submissions in the applicable Appeals. (viii) There is no right of appeal under the Act to this Court regarding compliance with

section 12 (anonymity) or

section 64(protection of personal information). The Court gave leave to the parties to speak to costs in the final disposition of each of the Appeals. Appearances: Anton Oleynik Appearing on his own behalf Koren Thomson and John Samms Appearing on behalf of the Respondent Andrew Fitzgerald Appearing on behalf of the Intervenor Authorities Cited: CASES CONSIDERED: Kathirgamanathan v. Western Regional Integrated Health Authority, 2018 NLSC 259; Ind-Rec HighwayServices Ltd. v.

Miawpukek Band, 172 Nfld. 8& P.E.I.R. 245, (NL CA), 528 A.P.R. 245 (N.L.C.A.); Anderson v.Canada (Attorney General), 2015 NLTD(G) 138; Hryniak v. Mauldin, 2014 SCC 7; Drove r v. King, 2016 NLTD(G) 120; Oleynik v.Kachanoski, 2021 NLSC 4; Beverage Industry Association of Newfoundland and Labrador v. Newfoundland and Labrador (Minister ofFinance), 2019 NLSC 222; Newfoundland and Labrador v. Newfoundland and Labrador Teachers' Association, 2018 NLCA 54;

Pomerleau Inc. v. Newfoundland and Labrador (Minister of Transportation and Works), 2012 NLTD(G) 119; X v. Canada, (FC), [1991] 1 F.C. 670, 1990 CarswellNat 125 (T.D.); Blank v. Canada (Minister of Justice), 2016 FCA 189; Alberta(Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53; McBreairty v. College of the North Atlantic, 2010NLTD 28; Archean Resources Ltd. v. Newfoundland (Minister of Finance), 2002 NFCA 43; Krieger v. Law Society (Alberta), 2002 SCC65; Blood Tribe Department of Health v. Canada (Privacy Commissioner), 2008 SCC 44; Lizotte c.

Aviva Cie d'assurance du Canada,2016 SCC 52; Newfoundland & Labrador (Attorney General) v. Newfoundland & Labrador (Information & Privacy Commissioner),2011 NLCA 69; College of the North Atlantic v. McBreairty, 2020 NLCA 19; Pritchard v Ontario (Human Rights Commission), 2004SCC 31; R. v. McClure, 2001 SCC 14; Corner Brook (City) v. Newfoundland and Labrador (Information and Privacy Commissioner),2020 NLSC 37 STATUTES CONSIDERED: Access to Information and Protection of Privacy Act, 2015, S.N.L. 2015, c A-1.2; Management ofInformation Act, S.N.L. 2005, c. M-1.01;

Interpretation Act, R.S.N.L. 1990, c. I-19; The Local Authority Freedom of Information andProtection of Privacy Act, S.S. 1990-91, c. L-27.1; Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5; Privacy Act,R.S.C. 1985, c. P-21; Access to Information and Protection of Privacy Act, S.N.W.T. 1994, c. 20 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sched. D TEXTS CONSIDERED: Clyde K. Wells, Doug Letto & Jennifer Stoddart, Report of the 2014 Statutory Review of the Access toInformation and Protection of Privacy Act Newfoundland and Labrador, Full Report vol. II (St.

John’s: Queen’s Printer, 2015); DonovanMolloy, Re Department of Natural Resources, Report A-2016-022 (NL: OIPC, 2016), online: Office of the Information and PrivacyCommissioner, Newfoundland and Labrador <http://www.oipc.nl.ca>; Michael Harvey, Re Department of Tourism, Culture, Industryand Innovation, Report A-2020-007 (NL: OIPC, 2020), online: Office of the Information and Privacy Commissioner, Newfoundland andLabrador < http://www.oipc.nl.ca>; Justice Richard Leblanc, Muskrat Falls: A Misguided Project (St.

John’s: Queens Printer, 2020),online: https://www.muskratfallsinquiry.ca; Donovan Molloy, Re Memorial University, Report A-2018-024 (NL: OIPC, 2018), online:Office of the Information and Privacy Commissioner, Newfoundland and Labrador < http://www.oipc.nl.ca>; Office of the Informationand Privacy Commission, Guidance Documents, Guidelines & Practice Bulletins, Exceptions to access and Related Topics,

Section 33 –Information from a Workplace Investigation (NL OIPC, 2016), online: <https://www.oipc.nl.ca>; Michael Harvey, Re MemorialUniversity of Newfoundland, Report A-2020-017 (NL: OIPC, 2020), online: Office of the Information and Privacy Commissioner,Newfoundland and Labrador <https://www.oipc.nl.ca> REASONS FOR JUDGMENT Noel, J.: INTRODUCTION [1] The Appellant, Anton Oleynik (“Oleynik”), has commenced several access to information appeals against the Respondent,Memorial University of Newfoundland and Labrador (“Memorial”), under either section 52(1) or

section 54 of the Access to Informationand Protection of Privacy Act, 2015, S.N.L. 2015, c A-1.2 (the “Act”) that engage the

interpretation of various sections of the Act. Memorial contends Oleynik’s appeals raise various requests for relief and determinations that raise questions of law. This is thedecision on Memorial’s Application seeking orders pursuant to Rule 38.01(

a) and 38.02 of the Rules of the Supreme Court, 1986, S.N.L.1986, c. 42, Sched. D on questions of law. [2] The Application was filed, as per my Case Management directions, under the within matter, and it is also applicable to sevenother proceedings: 201701G8543; 201801G7617; 202001G3681; 202001G3967; 202001G4524; 202001G4526; and 202001G4809.[1] [3] The Intervenor is the Information and Privacy Commissioner for Newfoundland and Labrador (the “Commissioner”), andcounsel for the Commissioner made submissions on the Application to assist the Court in statutory

interpretation. [4] Oleynik, at the commencement submissions, took objection that the Application was procedurally defective. He submittedRule 29.02(c)(

i) requires “a true copy of any affidavit to be used in support of the application.” He further argued it was not justtechnical compliance but went to the heart of how authority is delegated and who takes decisions for the public body under section110(1) of the Act. Memorial argued section 110(1) of the Act is not engaged on this Rule 38 Application, and no Affidavit is required,since it is not relying on any affidavit evidence to ground the Application but rather Oleynik’s pleadings. I ruled the Application couldproceed and gave Memorial leave to file an affidavit in support of the Application.

Memorial subsequently filed the Affidavit ofRosemary Thorne, the University Access and Privacy Advisor for Memorial, swearing to her having personal knowledge of theinformation within Memorial’s Application and the truth of its contents.

[ 5 ] I rejected Oleynik’s submission that the Application is procedurally defective. The Application does not require consideration of

section 110 of the Act . I will proceed to decide on the merits of the issues that are engaged. issues [ 6 ] The issues for determination are: 1. Whether the Court should exercise its discretion to determine the below issues under Rule 38.01 of the Rules of the Supreme Court, 1986 ; and 2. If the answer to Issue 1 is yes, the following issues will also require a determination: (

i) Whether the Act provides a right of appeal in respect to the extraordinary circumstances threshold set out in

section 24 of the Act (as requested in action 201701G8543); (ii) Whether this Court may determine if a record ought to be created pursuant to the Management of Information Act and/or Memorial University's Information Management policies on an appeal under

section 54 of the Act (as requested in 202001G2986 and 202001G4809); (iii) Whether the duty to assist in

section 13 of the Act is appealable on an appeal commenced under

section 54 of the Act (as requested in 202001G2986, 202001G3967; 202001G4524, 202001G4526 and 202001G4809; (iv) Whether this Court has jurisdiction on an appeal under the Act , or otherwise, to refer Oleynik's allegations of alteration of records for prosecution of a regulatory offence (as requested in 202001G3967 and 202001G4526); (

v) Whether the Court may order Memorial to notify Oleynik when a record has been destroyed and its authority for doing so on an appeal under the Act (as requested in 202001G4526); (vi) Whether the Court has remedial authority under the Act to order Memorial University not to break down a request for information into separate requests (as requested in 202001G4526); (vii) Whether section 33(3) of the Act renders all other exceptions to access enumerated in the Act inoperative, including the exception for solicitor​client and litigation privilege (as requested in 201801G7617, 202001G3681, 202001G4524 and 202001G4809); (viii) Whether there is a right of appeal under the Act to this Court regarding compliance with

section 12 (anonymity) and/or

section 64 of the Act (protection of personal information), as requested in 201701G8543 and 201801G7617. analysis Issue 1: Whether the Court should exercise its discretion to determine the below issues under Rule 38.01 of the Rules of the Supreme Court, 1986 [ 7 ] The analysis must start with the authorities and principles that govern Rule 38 determinations. [ 8 ] Rule 38.01 states: 38.01 Preliminary determination of questions of law, etc. 38.01(1) The Court may, on the application of any party or on its own motion, at any time prior to a trial or hearing, (

a) determine any relevant question or issue of law or fact, or both; (

b) determine any question as to the admissibility of any evidence;

(

c) order discovery or inspection to be delayed until the determination of any question or issue; (

d) give directions as to the procedure to govern the future course of any proceeding, which directions shall govern the proceedingnotwithstanding the provision of any rule to the contrary; (

e) where the pleadings do not sufficiently define the issues of fact, direct the parties to define the issues or itself settle the issues to betried, and give directions for the trial or hearing thereof; or (

f) order different questions or issues to be tried by different modes and at different places or times. 38.01(2) Where in the opinion of the Court, the determination of any question or issue under rule 38.01(1) substantially disposes of thewhole proceeding, or any cause of action, ground of defence, or counterclaim, the Court may thereupon order the entry of such judgmentor make such order, as is just. 38.01(3) Unless the Court otherwise orders, a trial or hearing shall not be stayed pending an appeal from an order under Rule 38. [9] As Justice Marshall of our Court noted in Kathirgamanathan v.

Western Regional Integrated Health Authority, 2018 NLSC259, the leading authority on Rule 38 applications is Ind-Rec Highway Services Ltd. v. Miawpukek Band, 172 Nfld. 8& P.E.I.R. 245, (NL CA), 528 A.P.R. 245 (N.L.C.A.). Green, J.A. indicated (at para. 12) the threshold questions before proceedingto deal with a matter as a preliminary question of law or fact are: … Whether it is appropriate, in the circumstances, that the issue be determined in that way and, if so, what directions ought to be givenand procedures adopted to ensure that the matter can be properly dealt with?

If it is determined that the use of Rule 38 is not appropriate,or suitable procedures cannot be adopted for properly dealing with the issue separately, it is the judge's duty to refuse the application. Memorial’s Submissions [10] Memorial submits consideration of the pertinent guiding principles in Miawpukek indicate it is appropriate for the Court toexercise discretion and determine the issues of law set out in the Application.

Discernible Advantage to Determining the Preliminary Issues [11] The disposition of the questions of law raised will narrow the issues on the Appeals, and make the proceedings before the Courtmore efficient and focused on the remaining issues for determination. There is a “discernible advantage” and “overall net gain to thelitigation process”: (Miawpukek at para. 14). It will avoid multiplicity of determinations on similar or identical issues, and addresscommon issues in a single hearing. [12] Memorial compiled a table (attached hereto as

Schedule “A”) of the issues spanning the Appeals. If Memorial obtains therelief sought, it will simplify each of the Appeals in the manner identified. Suitable Vehicle for Determination of the Questions Posed [13] The Court must be satisfied a Rule 38 hearing is a “suitable vehicle” for determining the questions posed: (Miawpukek at para.15). Legal questions are not to be answered in the abstract, but against the factual background of the particular dispute.

Memorialsubmits the pleadings are sufficient to resolve the questions of law and there is no dispute as to facts or the credibility of witnesses on thesalient issues. Justice Butler held in Anderson v. Canada (Attorney General), 2015 NLTD(G) 138, the pleadings are a public record andcan in certain circumstances constitute a sufficient evidentiary record for the determination of a question of law, such as in that case alimitation period.

Conduct of the Proceedings [14] If all of the issues cannot be resolved by way of the Rule 38 hearing, the Court may still give directions on simplifying theremaining issues (Miawpukek at paras. 17 and 18) and determining how evidentiary disputes can be resolved. [15] The Supreme Court of Canada mandates that courts keep access to justice foremost in mind and avail of more expedited meansof disposing of legal disputes: Hryniak v. Mauldin, 2014 SCC 7.

As long as the Court can “find the facts necessary to resolve the disputeand to apply the relevant legal principles to the facts as found,” a fair and just process “is not always that with the most painstakingprocedure” (at para. 28). There is precedent from our Court where Justice McGrath held Rule 38 was the appropriate vehicle fordetermination of a discrete factual issue, and cross-examination could proceed on that issue: Drove r v.

King, 2016 NLTD(G) 120, atpara. 35. [16] Memorial argues there are no facts in controversy, and its Application meets the principled approach to a Rule 38 dispositionand satisfies the culture shift encouraged in Hryniak.

Oleynik’s Position [ 17 ] Oleynik’s primary argument is none of the questions posed are questions of pure or true law, but questions of mixed law and fact that require the application of a legal standard to factual findings. The Court is to review the Appeals as a review de novo .

Section 59(1) of the Act stipulates the Court shall conduct the review “as a new matter and may receive evidence by affidavit.” He argues material facts are in dispute, and without an agreed statement of facts or the ability to cross-examine and challenge the credibility of Memorial’s affiants on the Appeals, it is inappropriate for the Court to answer the questions of law in a vacuum.

He seeks dismissal of the Application, as in Kathirgamanathan (at para. 37 ), because a sufficient evidentiary record is not before the Court. [ 18 ] Oleynik submits the Rule 38 Application is an unnecessary step in the case-managed proceedings in violation of the principle of proportionality that I spoke about (at para. 37) in Oleynik v. Kachanoski , 2021 NLSC 4 (which Oleynik has appealed). He will seek leave to transform the Appeals into judicial review applications, if I accept Memorial’s arguments that the Court’s remedial authority on appeals under the Act is limited.

He relies on the decision of our Court in Beverage Industry Association of Newfoundland and Labrador v. Newfoundland and Labrador (Minister of Finance) , 2019 NLSC 222 . [2] Marshall, J. held (at para. 75): I conclude that the Act does not preclude judicial review being sought by a third party who has no standing to appeal due to lack of notice under section 19(1) , but who may suffer harm from a department's decision to disclose; provided that disclosure has not yet occurred.

There is no adequate alternate remedy in the statute for such circumstances. [ 19 ] Whether judicial review is available is a matter in serious contention. As the Case Management Judge, I would have to grant Oleynik leave to bring such applications, and hear submissions from the parties. Oleynik already has a multiplicity of proceedings before the Court involving Memorial.

A request to convert the Appeals to judicial reviews will require the Court giving consideration to such factors, among others, as the principle of proportionality, the real issues in dispute, the impact upon the parties, nature of the relief sought, and the broader concern of access to justice. [ 20 ] No one has an unfettered right to Court time and judicial resources. Other litigants and resolution of their rights and issues are forced to wait in the queue, if I permit Oleynik to have unrestrained access to the Court.

The Court must be mindful that all litigants are needing, deserving, and expecting timely access to the Court. [ 21 ] The focus of the Court in all the case-managed proceedings is on Oleynik’s legitimate access to records. When the Court strays into matters peripheral to access, there is no “net gain” to this massive piece of litigation encumbering the Court. [ 22 ] Oleynik raises two other arguments for opposing the preliminary determinations. Firstly, the case law authorities on Rule 38 deal with a different format of proceedings (trial as opposed to appeal).

Secondly, Memorial is ‘forum shopping’ by raising essentially the same questions and same arguments before the ATIPPA Statutory Review Committee 2020. [3] I see no merit to either of these arguments. Rule 58 governs the conduct of the Appeals, and as per Rule 58.02(3), Rule 38 on preliminary determinations “may be applied as required, with any necessary modifications.” Memorial is entitled to come before this Court seeking whatever relief under the Rules it deems appropriate.

Commissioner’s Position [ 23 ] The Commissioner agrees that the questions identified by Memorial can be determined using Rule 38.01 ; however, there is disagreement on Issue 2(iii) on the duty to assist in

section 13 of the Act . The Commissioner also disputes the appropriateness and extent of using Rule 38.01 on Issue 2(vii) to interpret the interplay between

section 33 (“Information from a workplace investigation”) with other exceptions of the Act . [ 24 ] I will now proceed to apply the governing principles and consider the positions of the parties in deciding the questions Memorial posed for determination. Issue 2(i): Whether the Act provides a right of appeal in respect to the extraordinary circumstances threshold set out in

section 24 of the Act (as requested in action 201701G8543) [ 25 ] In his Notice of Appeal in 201701G8543, Oleynik states the following as an issue for determination: “Whether there are extraordinary circumstances that allow the Respondent to apply for approval after the expiration of the deadlines set by Sections 15(1) , 16(1) and 21(1) of the Act .” [ 26 ] Sections 15 , 16 , and 21 of the Act deal respectively with time limits and procedure for an advisory response, final response to an access request, and disregarding a request. [ 27 ] Oleynik submits the Act does not prevent appeals from decisions to disregard when made on procedural grounds.

He argues documented evidence is needed to address the circumstances of Memorial’s actions. I will explain why I disagree. [ 28 ]

Section 24 of the Act gives the Commissioner exclusive statutory authority to vary a procedure, including time limits, upon receiving an application from a body public, applicant, or third party. It is the Commissioner’s duty to consider if “extraordinary circumstances exist and it is necessary and reasonable” to grant the request: section 24(2). The Commission’s decision on “a variation of a procedure under

section 24” is not subject to appeal:

section 55(b). [ 29 ] The elimination of an appeal to the Court is consistent with the purpose of the Act . Section 3(1) states the purpose is to facilitate democracy through ensuring that citizens have the information required to participate meaningfully in the democratic process. The purpose is achieved by providing an oversight agency that “facilitates timely and user-friendly application of this Act : section 3(2) (b)(ii).

The elimination of appeals on procedural decisions of the Commissioner prevents unnecessary delay, promotes timely access to information, and allows citizens to participate meaningfully in our democratic process. [ 30 ] My reasoning is consistent with the ruling in Atlantic Lottery Corporation Inc. v Newfoundland and Labrador (Finance) , 2018

NLSC 133. Justice Orsborn stated, (at para. 34) “the court cannot expand upon the availability of appellate relief beyond that providedby the Act.” [31] The issue of whether the extraordinary circumstances threshold under

section 24 was satisfied in 201701G8543 is notappealable under the Act. Issue 2(ii): Whether this Court may determine whether a record ought to be created pursuant to the Management of Information Actand/or Memorial University's Information Management policies on an appeal under

section 54 of the Act (as requested in 202001G2986and 202001G4809) [32] In his Notice of Appeal in 202001G2986, Oleynik states the following in his relief sought: IV. The Appellant requests that the Court (

a) Determines if audit object access logs are university records that must be created in a manner and format that is accessible and mustbe retained as required to support Memorial's compliance with relevant legislation and policies [33] In his Notice of Appeal in 202001G2986, the Appellant states the following as his relief sought: IV. The Appellant requests that the Court (

b) Enforces the Respondent's Information Management Policy. [34] Further, in his Notice of Appeal in 202001G2986 at paragraphs 20 and 26, Oleynik alleges breach of the Management ofInformation Act, S.N.L. 2005, c. M-1.01 and specifically states that because the Management of Information Act is mentioned inMemorial’s Information Management policies, the Court should enforce it.

Memorial states that Oleynik is asking the Court to make adetermination of whether a record is required to be created under the Management of Information Act and Memorial’s policies. [35] In action 202001G4809, Oleynik similarly seeks a determination of whether Logs ought to have been created pursuant to thealleged requirements of the Management of Information Act. [36] Oleynik submits the Act cannot be considered and applied separately from the Management of Information Act and Memorial’sown Information Management policies and related procedures for managing and retention of records.

He acknowledges there is noprecedent of this Court interpreting and enforcing the Management of Information Act and a public body’s duty to create a record. Hesuggests if the Court is reluctant to set a precedent, given the ongoing statutory review of the Act, for the Court to leave this task to thelegislator. [37] I must answer the question before me based on the proper statutory interpretative approach to the existing wording of the Act.

A careful reading of the Act, combined with consideration of legislative intention, reveals there is no provision that requires a publicbody to create a record, or permits the Court to grant an order finding that a record ought to exist. [38] The Act gives the right of access “to a record in the custody or under the control of a public body” at section 8(1). A record hasto exist at the time of the access to information request for it to be in the public body’s custody or control. [39] The Clyde K.

Wells, Doug Letto & Jennifer Stoddart, Report of the 2014 Statutory Review of the Access to Information andProtection of Privacy Act Newfoundland and Labrador, Full Report vol. II (St. John’s: Queen’s Printer, 2015) (the “Wells Report”)offers guidance on the

interpretation of the Act regarding the creation of records. The Wells Report has been recognized by our Court ofAppeal “as close to an authoritative source on legislative intention as can be imagined” (Newfoundland and Labrador v. Newfoundlandand Labrador Teachers' Association, 2018 NLCA 54, at para. 43). The Wells Report (at page 315) specifically recommended that a dutyto document be excluded from the Act: The Committee recommends that 79.

The Government take the necessary steps to impose a duty to document, and that the proper legislation to express that duty would bethe Management of Information Act, not the ATIPPA. [40] The recommendation from the Wells Report demonstrates that it was not the intention of the Legislature to include a duty todocument in the Act.

Section 54 limits appeals of the public body’s decision to “(

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

b) not make the requested correction to personal information.” As a result, it would be contrary to the intention of theLegislature to permit an appeal under

section 54 on the duty to document or for creation of a record. [41] The Court has no remedial authority under the Act on whether a record ought to have been created. The Court’s powers ondisposition of an appeal are limited to those set out in

Section 60. [42] Section 60(1)(c)(ii) permits the Court to “make any order that the court considers appropriate” where it determines that a publicbody is not authorized or required to refuse access to all or part of a record. The Court can order that the public body provide furtherreasons for the refusal to release the information requested, including an explanation of the nature of the information withheld and theapplicability of the statutory exemptions claimed: Pomerleau Inc. v. Newfoundland and Labrador (Minister of Transportation andWorks), 2012 NLTD(G) 119, at para. 10.

The Court is limited to granting or refusing access to records, or to the correction of personalinformation. There is no order-making power in respect of records that do not exist but allegedly ought to exist. [43] Memorial relies upon Federal Court of Canada authority that considered provisions in the federal legislation that were, at thetime, somewhat similar to those under the Act. Justice Strayer in X v. Canada, (FC), [1991] 1 F.C. 670, 1990

CarswellNat 125 (T.D.), held (at para. 10 ): “The reference to ‘such other order’, in my view, only authorizes the Court to modify the form of the remedy to achieve disclosure in some form or perhaps to declare that disclosure should have been made where the record no longer exists.” I share a similar view that the wording of section 60(1)(c)(ii) is intended to construct an order on the remedy to achieve appropriate disclosure of a record or records. [ 44 ] There is nothing in the Act or the Management of Information Act that creates a duty to document.

The Legislature did not enact the duty to document, as the Wells Report recommended. The Commissioner’s Office has issued reports noting the absence of the duty to document on public bodies: Donovan Molloy, Re Department of Natural Resources, Report A-2016-022 (NL: OIPC, 2016), online: Office of the Information and Privacy Commissioner, Newfoundland and Labrador <http:// www.oipc.nl.ca > .

Oleynik points out the Commissioner in Michael Harvey, Re Department of Tourism, Culture, Industry and Innovation, Report A-2020-007 (NL: OIPC, 2020), online: Office of the Information and Privacy Commissioner, Newfoundland and Labrador < http:// www.oipc.nl.ca > (at para. 42) stated: “Without the requirement to create and retain records of significant decisions, it is not possible to effectively use ATIPPA , 2015 to assess these decisions and hold public bodies accountable.” In the same Report (at para. 43), the Commissioner refers to, with approval, the recommendation made by Justice Richard Leblanc, Muskrat Falls: A Misguided Project (St.

John’s: Queens Printer, 2020), online: <https://www.muskratfallsinquiry.ca> in the Final Report of Commission of Inquiry Respecting the Muskrat Falls Project that “legislation in this province be amended to incorporate a duty to document.” It is not the role of this Court to read into the legislation a duty to document that the Legislature chose not to enact. [ 45 ] Similarly, there is nothing in the legislation that allows me in deciding an appeal under

section 54 to consider whether Memorial’s policies require the creation of a record. [ 46 ] The issue in 202001G2986 and 202001G4809 that whether a record ought to have been created under the Management of Information Act or Memorial’s policies is not appealable under

section 54 of the Act . Issue 2(iii): Whether the duty to assist in

section 13 of the Act is appealable on an appeal commenced under

section 54 of the Act (as requested in 202001G2986, 202001G3967; 202001G4524, 202001G4526 and 202001G4809 [ 47 ] On this issue, I agree with Oleynik and the Commissioner that the duty to assist is appealable. Memorial is required under

section 13 of the Act to “make every reasonable effort to assist” Oleynik in his request to access records. The Court has the duty in section 59(1) to review Memorial’s “failure to act” in determining whether a reasonable search was conducted. The question of the adequacy of the search is a determination requiring an assessment of the evidentiary record put before the Court. The burden of proof is on Memorial to establish the reasonableness of the search: section 59(2). [ 48 ] I will set out Memorial’s position on the issue and explain why I am not prepared to accept it. [ 49 ] Memorial maintains that the duty to assist is not appealable under

section 54. The duty, counsel for Memorial submits, was never intended to be a function of law. Rather, the Legislature has left considerations of the duty to assist to be addressed within the Commissioner’s role in section 3(2)(

f) as advocate, educator to public bodies, and an oversight agency. [ 50 ] Memorial relies on the Commissioner’s

interpretation of the duty to assist as having three components: to assist an applicant in the early stages of making a request; to conduct a reasonable search for records; and to respond in an open, accurate, and complete manner (Donovan Molloy, Re Memorial University , Report A-2018-024 (NL: OIPC, 2018), online: Office of the Information and Privacy Commissioner, Newfoundland and Labrador < http://www.oipc.nl.ca> at para. 26). Memorial contends a finding that it failed in one of those three ways to assist Oleynik cannot form the basis of an appeal, or permit the Court to fashion a remedy under

section 60 to account for any duty to assist. [ 51 ] Memorial seeks a plain and narrow reading of

section 54. It notes

section 54 provides a right of appeal following the issuance of a Commissioner’s report on the limited basis of the public body’s decision to either (

a) grant or refuse access to information; or (

b) to not make the requested correction to personal information. [ 52 ] Memorial attempts contextually to justify the limited basis of a

section 54 appeal by pointing to other provisions of the Act . A public body’s ability to seek a declaration under

section 50 following receipt of the recommendations in a Commissioner’s report is similarly limited: there is no right to seek a declaration in relation to the duty to assist. Memorial states the wording of

section 60 suggests the Legislature did not intend for the duty to assist to be appealed to the Court. [ 53 ] The oversight of the duty to assist is left, Memorial submits, solely to the Commissioner and the powers available to the Commissioner to make recommendations to public bodies and provide reports to the Legislature. The Commissioner in

section 47(a)(b) (

c) may make recommendations on access to records and correction of personal information, similar to the wording used in

section 54, and subsection (d) “other improvements for access to information be made within the public body.” The Commissioner has other powers enumerated in

section 95, particularly to bring to the attention of the public body a failure to fulfil the duty to assist.

Section 105(

c) mandates the Commissioner to report to the Legislature on persistent failures of public bodies to fulfil the duty to assist. [ 54 ] The Court’s authority, Memorial argues, is limited to determining whether exceptions to access were appropriately applied. It purports the Federal Court has reached the same conclusion on similar sections that existed under a previous version of the federal statute. Blank v.

Canada (Minister of Justice) , 2016 FCA 189 held (at para. 36 ) that the Federal Court’s role is narrowly circumscribed, and that its reviewing authority is confined to order access to a specific record when access has been denied. [ 55 ] I do not find Memorial’s reliance on Blank and the federal legislation persuasive on my

interpretation of the Act . A precondition for judicial review by the Federal Court is a complaint to the Information Commissioner. This precondition provides for an independent review of the conduct of the public body. There is no provision like

section 52 of the Act allowing a direct appeal to the Court on the public body’s “failure to act.” By directing the Court to “review the decision, act, or failure to act” of the public body in

section 59, the Court has the power to conduct an independent review and determine if the public body has failed to assist the applicant in conducting a reasonable search.

[ 56 ] The Supreme Court of Canada jurisprudence cautions against relying too heavily on the texts of parallel legislation, while reminding us “that legislatures are presumed to use expressions consistently within an enactment”: ( Alberta (Information and Privacy Commissioner) v. University of Calgary , 2016 SCC 53 , at para. 63 ). [ 57 ] If I were to accept the

interpretation Memorial proposes on the duty to assist, there would be no oversight of the duty to assist on appeals that proceed directly to the Court. That would be contrary to the approach this Court took in McBreairty v. College of the North Atlantic , 2010 NLTD 28 . Seaborn, J. reviewed the duty to assist in the context of a direct appeal under the previous legislation, and concluded (at para. 42), having reviewed the documents in evidence, that the public body “made every reasonable effort” to respond to the appellant’s request.

He stated (at para. 43) “the standard is not perfection but all reasonable effort.” The Legislature could not have intended that the Court would have an oversight role on the duty to assist on a direct appeal, but not under a

section 54 appeal of a public body’s decision following a review by the Commissioner. [ 58 ] Memorial’s position would leave Oleynik with a right of access to records (unless exceptions under the Act applied), but no oversight by the Court on Memorial’s requirement under

section 13 to make reasonable efforts to assist and to respond timely “in an open, accurate and complete manner.” [ 59 ] I am guided in my

interpretation of whether the duty to assist is appealable under

section 54 to the approach the Court of Appeal established in interpreting a statute: ( Archean Resources Ltd. v. Newfoundland (Minister of Finance) , 2002 NFCA 43 , at paras. 19-23 . The starting point for the

interpretation is

section 16 of the

Interpretation Act , R.S.N.L. 1990, c. I-19 . The Act and each of its provisions shall be considered remedial and receive the

interpretation that best ensures the attainment of the objects of the Act , according to its true meaning. Green, J.A. stated (at para. 22): “‘True’ meaning is not plain meaning; it is a conclusion arrived at by reconciling all the appropriate indicators of meaning that the court is directed to consider.” I must therefore fairly reconcile the language used in the Act with the broader objects of the legislation. [ 60 ] The duty to assist in

section 13 creates a positive statutory obligation on a public body. I am persuaded by counsel for the Commissioner’s submissions that if a search is deficient the public body is “failing to act,” and an access to information applicant is being denied a statutory right of access.

Section 3 sets out the purpose of the Act and how it is to be achieved, specifically by providing for “independent review” of decisions by public bodies.

Section 8 recognizes the applicant’s right of access. [ 61 ] Reading the Act as a whole, together with the stated objects, the Court is empowered under a

section 54 to consider the reasonableness of the effort Memorial made to assist Oleynik in his access requests. The Court may exercise its power under section 59(3) to order production of documents for examination to assess whether there any missing records as alleged. The Court can then proceed to dispose of the appeal pursuant to

section 60. [ 62 ] The duty to assess in

section 13 of the Act is appealable under

section 54 in 202001G2986, 202001G3967; 202001G4524, 202001G4526 and 202001G4809. The Appeals in each will require an assessment of the particular evidentiary record for the Court’s determinations on the reasonableness of Memorial’s effort to respond to the access requests.

Issue 2(iv): Whether this Court has jurisdiction on an appeal under the Act , or otherwise, to refer Oleynik's allegations of alteration of records for prosecution of a regulatory offence (as requested in 202001G3967 and 202001G4526) [ 63 ] Oleynik, in the above-noted Appeals, requests as part of his grounds for relief, that the Court refer allegations of alteration of records to the Director of Public Prosecutions for the Province. [ 64 ] The Court has no authority under the Act to refer Oleynik’s allegations of alteration or records to the Director of Public Prosecutions for prosecution of a regulatory offence.

The pleadings do not give rise to any legal justification otherwise for this Court to assume jurisdiction and refer matters for prosecution. [ 65 ] Memorial grounds its submissions on respect for the constitutional separation of powers and the rule of law. Courts as independent adjudicators are not to interfere with prosecutorial decision-making of the Attorney General in the exercise of executive authority: Krieger v. Law Society (Alberta) , 2002 SCC 65 , at para. 31 . Oleynik argues the Krieger authority undermines, rather than validates, Memorial’s arguments.

The Supreme Court of Canada held that both the employer (the Attorney General of Alberta) and the Law Society of Alberta had jurisdiction to review an allegation that a Crown prosecutor was acting dishonestly or in bad faith failed to disclose relevant information. The nature of the view proceeds from different perspectives.

I do not need to opine on whether Krieger supports or undermines Memorial’s argument for the purpose of my narrow ruling on this issue. [ 66 ] The Legislature chose not to give this Court authority to make referrals to the Attorney General relating to the alleged commission of offences under the Act or another statute, as other jurisdictions have specifically enacted.

Oleynik brought to the attention of the Court the following jurisdictions in Canada where the Court may disclose to the Attorney General or the appropriate authority information that relates to the commission of an offence: • Section 47(4) of The Local Authority Freedom of Information and Protection of Privacy Act , S.S. 1990-91, c. L-27.1 ; • Section 42(4) of the Freedom of Information and Protection of Privacy Act , S.N.S. 1993, c. 5 ; • Section 46(2) of the Privacy Act , R.S.C. 1985, c.

P-21 ; and • Section 38(8) of the Access to Information and Protection of Privacy Act , S.N.W.T. 1994, c. 20 . [ 67 ] The fact no similar provisions exist in our legislation is a complete answer that there is no such authority under the Act for this Court to make a referral to the Attorney General. [ 68 ] The Commissioner plays a role in making disclosure to the Attorney General on the alleged commission of offences under the Act . Section 102(4) provides the Commissioner with a statutory discretion to disclose to the Attorney General information relating to the

commission of an offence, where there is reason to believe that an offence has been committed. The Commissioner submits it is not appropriate for the Court to exercise this referral power. If there are reasonable grounds to believe that a statutory offence has been committed, the Commissioner has the experience and expertise to determine if a referral is appropriate.

The Legislature gave this jurisdiction to the Commissioner, and I see no legitimate reason for the Court to impose on the choice the Legislature made. [ 69 ] Oleynik is not precluded under either the Act or the Management of Information Act from making his own complaint to the appropriate authorities. [ 70 ] There is no jurisdiction on an appeal under the Act (as requested in 202001G3967 and 202001G4526) for the Court to refer Oleynik's allegations of alteration of records to the Director of Public Prosecutions.

Issue 2(v): Whether the Court may order Memorial University to notify Oleynik when a record has been destroyed and its authority for doing so on an appeal under the Act (as requested in 202001G4526) [ 71 ] In his Notice of appeal in 202001G4526, Oleynik requests the following relief: The Appellant requests that pursuant to section 60(1)(c)ii of the ATIPPA the Court orders the head of the public body • to reliably inform the Appellant of the disposal date of the Receiver’s copies of the emails from Ms. Heath dated April 8 and 10, 2019 and the Receiver’s copies of the email from Ms.

Abdel-akher dated April 9 and 16, 2019 and the authority for doing so [ 72 ] Memorial submits this request is effectively a specific request for this Court to expand and enforce a specific, and particularly onerous, duty to assist. The Commissioner agrees with Memorial’s position that, in the circumstances of this case, this issue is not properly the subject of an appeal. [ 73 ] For the same reasons discussed above under Issue 2(iii), the duty to assist is reviewable by this Court.

I am not ruling out that the Court has the remedial power under section 60(1)(c)(ii) to declare that disclosure should have been made when the record no longer exists, or other appropriate order within the context of the particular evidentiary findings. [ 74 ] The Commissioner notes sections 5(2) and 116 (

n) of the Act have bearing on the storage, destruction, and disposal of records of a public body. Section 5(2) allows public bodies to follow other management of information policies that are not governed by the Act .

Section 116 (

n) draws a distinction between public bodies that are subject to the Management of Information Act and those that are not.

Memorial is subject to the Management of Information Act , and that legislation governs its conduct regarding the retention and disposal of records. [ 75 ] In the absence of a proper evidentiary foundation and specific consideration of the intersection between the two pieces of legislation, if any, the Rule 38 Application is not the avenue for resolution of this Appeal issue. [ 76 ] Whether the Court may order Memorial to notify Oleynik of the disposal date of the subject emails in 202001G4526 is therefore more properly left for consideration on the evidence and submissions in the subject Appeal.

Issue 2(vi): Whether the Court has remedial authority under the Act to order Memorial University not to break down a request for information into separate requests (as requested in 202001G4526) [ 77 ] In his Notice of appeal in 202001G4526, Oleynik alleges, and then pleads for the following relief: 13. On December 10, 2019 the Appellant made another access to information request, this time at the provincial level. The Respondent unilaterally set up multiple files artificially multiplying the number of access requests submitted by the Appellant. . . .

The Appellant requests that pursuant to section 60(1)(c)ii of the ATIPPA the Court orders the head of the public body • not make any changes in the access to information request without first consulting with the applicants [ 78 ] There is no provision in the Act that prevents a public body from breaking down a request for information into separate requests.

The Commissioner submits a public body may be fulfilling its statutory duty to assist in breaking down a request to assist the applicant in an open, accurate, and complete manner. [ 79 ] I give considerable deference on this issue to the views of the Commissioner because of the expertise in the Commissioner’s Office in overseeing the administration of public bodies processing access to information requests. Access to information requests may be lengthy, cover significant periods of time, and contain numerous records.

The Commissioner states if a public body is of the opinion that it can expeditiously fulfill a request by breaking it down into parts, that is something to be encouraged, not prohibited. [ 80 ] A public body cannot delay a final response to the request by breaking down a request. The access rights of the applicant are protected by the time limit set out in

section 16; and the Commissioner’s administrative oversight roles in sections 23 and 24 to grant an extension of time, or vary a procedure where circumstances exist. There is no right of appeal to the Court on such decisions of the Commissioner:

section 55(

a) and (b). The administration of access to information requests and the time limit for responding is left to the Commissioner, and not the Court.

[ 81 ] I am mindful of Oleynik’s concerns about the context of breaking down requests and the impact it may have on restricting his right to access. The refusal of access is appealable. I will be watching in the course of the scrutiny of the evidence the impact of breaking down email threads and whether, as he contends, this amounts to a denial of access or timely access. [ 82 ] Nevertheless, I am able to decide at this stage in Appeal 202001G4526 that there is no remedial authority under the Act to order Memorial not to break down a request into separate requests without first consulting with applicants.

Issue 2(vii): Whether section 33(3) of the Act renders all other exceptions to access enumerated in the Act inoperative, including the exception for solicitor​ client and litigation privilege (as requested in 201801G7617, 202001G3681, 202001G4524 and 202001G4809)? [ 83 ] Whether section 33(3) of the Act - information from a workplace investigation – is paramount to other exceptions to access is a controversial issue with the Commissioner siding with Oleynik that it should not be decided in the abstract without reliance on evidence.

Memorial seeks an order that section 33(3) does not trump other exceptions set out in the Act . [ 84 ] In his Notice of Appeal in 201801G7617, Oleynik stated the following as an issue for determination: Whether the Respondent properly refused to disclose to the Appellant, who is a party to the workplace investigation, all relevant information created or gathered for the purpose of the workplace investigation, in contravention of the imperative requirement set in Section 33(3) of the Act ? [ 85 ] In his Notice of Appeal in 202001G4524, Oleynik stated

section 33 overrides solicitor-client privilege: 21. The grounds for the present appeal are:

b) The records exempt from disclosure pertain to a workplace investigation and, accordingly,

section 33 of the ATIPPA applies to those records;

c) Section 30 exemptions are overruled by the right to access set in

Section 33 in the circumstances. The Commissioner upheld that ‘if

section 33 applies to information, then other exceptions to access cannot be applied to that information so as to withhold it’ [ 86 ] In his Notice of Appeal in 202001G3681, Oleynik again effectively stated

section 33 overrides solicitor client privilege (section 30) [4] and the policy advice exception (paragraph 29(1)(a)): IV. The Appellant requests that pursuant to Section 60(1)(

c) of the ATIPPA after reviewing the released records and the exemptions applied by the Respondent, the Court orders the head of the public body: • to release the information improperly redacted pursuant to Sections 29(1)(

a) and 30(1) of the ATIPPA [ 87 ] In his Notice of Appeal in 202001G4809, Oleynik again relies upon

section 33 to override exceptions to access: IV. The Appellant requests that pursuant to Subsection 60(1)(

c) of the ATIPPA , this Honourable Court orders the Respondent a. to give the Appellant access under Section 33(3) of the ATIPPA to all or part of the responsive records [ 88 ] I have a sufficient comfort level to decide that section 33(3) does not abrogate solicitor-client privilege or litigation privilege; however, I am less comfortable in deciding the

section is paramount to all other exceptions to access under the Act without the specific circumstances and evidence being before the Court. I will explain my reasoning commencing first with solicitor-client privilege and litigation privilege, and then other exceptions to access to records under the Act . Solicitor-client Privilege and Litigation Privilege [ 89 ] Solicitor-client privilege is fundamental to the proper functioning of our legal system.

It is in the public interest that people can freely discuss their problems with a lawyer with an assurance of confidentiality “as close to absolute as possible”: Blood Tribe Department of Health v. Canada (Privacy Commissioner) , 2008 SCC 44 , at para. 9 . [ 90 ] Clear statutory language is required to abrogate solicitor-client privilege.

The Supreme Court of Canada has consistently reiterated: “To give effect to solicitor-client privilege as a fundamental policy of law, legislative language purporting to abrogate it, set it aside or infringe it must be interpreted restrictively and must demonstrate a clear and unambiguous legislative intent to do so”: Alberta (Information and Privacy Commissioner) , at para. 28 .

Open-textured language governing production of documents will not include solicitor-client documents, unless expressed specifically to include solicitor-client privilege documents: Blood Tribe at para. 11. [ 91 ] The Supreme Court of Canada confirmed that litigation privilege is also of fundamental importance to the functioning of our legal system, and that litigation privilege, like solicitor-client privilege, requires “clear, explicit and unequivocal language” in order to lift it: Lizotte c.

Aviva Cie d'assurance du Canada , 2016 SCC 52 , at para. 64 . [ 92 ] Oleynik maintains that “all relevant information” in subsections 33(2) and 33(3) is intended to abrogate solicitor-client and litigation privilege.

Section 30 is the provision that allows a public body to refuse to disclose to an applicant solicitor-client or litigation

privilege information. I accept the submissions of counsel for Memorial that the authorities of our highest court directly contradict Oleynik’s argument. [ 93 ] I do not need any evidentiary record to come to this statutory

interpretation of section 33(3). The privilege in question is fully established in law, and it is merely an exercise in statutory

interpretation in keeping with the modern approach mandating “a contextual, purposive

interpretation” of the Act : Newfoundland & Labrador (Attorney General) v. Newfoundland & Labrador (Information & Privacy Commissioner) , 2011 NLCA 69 , at para. 28 ; and College of the North Atlantic v. McBreairty , 2020 NLCA 19 , at para. 40 . Notably, the Wells Report when considering information from a workplace investigation, (at pages 327-328) did not recommend that

section 33 would abrogate solicitor-client and litigation privilege. [ 94 ] That is not to say there is no opportunity for Oleynik to challenge the claim of privilege or, as he says, to prevent a “false claim” of privilege. The Act in

section 100 permits the Commissioner to review records subject to a privilege challenge, and the Court under

section 58 can review the record in dispute, and the privilege is not effected by the production to the Commissioner or disclosure to the Court.

The burden remains on Memorial to establish that solicitor-client or litigation privilege attaches to records requested by Oleynik. [ 95 ] It is a question of mixed law and fact - the application of the appropriate legal test to the particular factual situation - that governs whether the privilege arises. [5] The determination of solicitor-client privilege depends on the nature of the relationship, the subject matter of the advice, and the circumstances in which it is sought and rendered: Pritchard v Ontario (Human Rights Commission ), 2004 SCC 31 , at para. 20 .

Only communications made for “the legitimate purpose of obtaining lawful” legal advice or assistance are privileged: R. v. McClure , 2001 SCC 14 , at para. 37 . [ 96 ] Justice Handrigan’s decision in Corner Brook (City) v. Newfoundland and Labrador (Information and Privacy Commissioner) , 2020 NLSC 37 , is a useful illustration of the approach the Court takes to a claim of solicitor-client privilege and litigation privilege in the context of

section 33 of the Act . The Commissioner in that case (at para. 79) took the position the City undertook a workplace investigation and was not preparing for anticipated litigation; and the documents and communications were not protected by solicitor- client privilege. Handrigan, J. was satisfied (at para. 87) that the City Solicitor’s investigation and report to City Council was not a workplace investigation.

He nevertheless found litigation privilege and solicitor-client privilege applied to the documents. [6] [ 97 ] Handrigan, J. did not have to address the question of law squarely engaged before me: whether section 33(3) abrogates the privilege in the context of a party to a workplace investigation if the disputed records are considered relevant to the investigation. [ 98 ] To accept the position of Oleynik and the Commissioner, the wording of section 33(3) would require specific language in the nature of ‘notwithstanding

section 30 of the Act ’ to abrogate solicitor-client and litigation privilege. No such explicit language is employed, so I conclude the Legislature did not intend to abrogate this fundamental privilege embedded in our law. As important as it is for Oleynik to have all relevant information in a workplace investigation for the purpose of defending his professional security, Memorial remains entitled to assert the protection of solicitor-client and litigation privilege.

Other Exceptions to Access Under the Act [ 99 ] Memorial would have me go even further and hold that section 33(3) does not trump other exceptions set out in the Act . Unlike solicitor-client and litigation privilege, which is clearly established in our legal system and with which judges are well acquainted, I share the concern expressed by the Commissioner and Oleynik of addressing all other exceptions to access in a vacuum without context and particular facts pertinent to the circumstances before the Court. [ 100 ] The exceptions cover diverse areas and go well beyond the scope of the Appeals.

They include the following provisions of the Act : Cabinet confidences (section 27), local public body confidences (section 28), policy advice or recommendations (section 29), legal advice (

section 30 , subject to the common law protections for solicitor-client privilege), disclosure harmful to law enforcement (section 31), confidential evaluations (section 32), disclosure harmful to intergovernmental relations or negotiations (section 34), disclosure harmful to the financial or economic interest of a public body (section 35), disclosure harmful to conservation (section 36), disclosure harmful to individual or public safety (section 37), disclosure harmful to labour relations interests of public body as employer (section 38), disclosure harmful to business interests of a third party (section 39), disclosure harmful to personal privacy (section 40), and disclosure of House of Assembly service and statutory office records (section 41). [ 101 ] It is inappropriate for the Court to opine on matters outside the scope of the pleadings and provide statutory

interpretation in a complete vacuum of the facts and circumstances of each of the Appeals. [ 102 ] A key determination for disclosure under

section 33 is relevance. Office of the Information and Privacy Commission, Guidance Documents, Guidelines & Practice Bulletins, Exceptions to access and Related Topics,

Section 33 – Information from a Workplace Investigation (NL OIPC, 2016), online: <https://www.oipc.nl.ca> (at page 2) states: “Decisions with respect to relevance are case specific, and as a result certain types of information may be disclosed in one case but not another.” The public body, given the specific circumstances of each file, makes determination on the relevance of the information. [ 103 ] The Wells Report simply examined the ambiguity of the wording used in the predecessor legislative provision, and recommended (at page 328) replacing the words “information that would reveal the substance of records” with “all relevant information.” Memorial states the words “all relevant information” in section 33(3) were never intended to create a wholesale exception to all other bona fide barriers to access in the Act .

If the Legislature had intended to take that radical step, it would have done so explicitly. The Wells Report did not engage in any such discussion. [ 104 ] Oleynik frames his argument for an expansive

interpretation of section 33(3) and “all relevant information” on procedural fairness. His employment is at risk and full disclosure is necessary. He notes the Commissioner’s

interpretation of section 32(3) is that: “all relevant information created and gathered for the purpose of the workplace investigation is to be disclosed to a party of a workplace

investigation, including when the provision conflicts with another exception under [the Act ] .” [7] [ 105 ] Memorial argues ensuring procedural fairness is not the purpose of section 33(3). Administrative tribunals have charge over their own procedures, including production of records. The Legislature did not intend to override administrative tribunals’ ability to control their own processes.

Section 3(3) explicitly states that the Act “does not replace other procedures for access to information.” [ 106 ] Oleynik says he is entitled to know the full particulars of the case against him long before it gets before the administrative tribunal, so he can convince his union to take on the grievance on his behalf. [ 107 ] Oleynik and the Commissioner’s

interpretation of section 33(3) taking paramountcy over other exceptions, against the vigorous objection of Memorial, is more appropriately left for resolution on the facts and submissions in the Appeals rather than by Rule 38. [ 108 ] All relevant information created or gathered for a workplace investigation in Section 33(3) does not override the solicitor-client and litigation privilege in

section 30 of the Act . Whether section 33(3) is paramount to all other exceptions to access enumerated in the Act is not appropriate for Rule 38 determination and is left for resolution on the evidence and submissions in Appeals 201801G7617, 202001G3681, 202001G4524 and 202001G4809. Issue 2(viii): Whether there is a right of appeal under the Act to this Court regarding compliance with

section 12 (anonymity) and/or

section 64 of the Act (protection of personal information) as requested in 201701G8543 and 201801G7617 [ 109 ] In his Notice of Appeal in 201701G8543, Oleynik stated the following as an issue for determination: Whether the Respondent complied with requirements of sections 12 ‘Anonymity’ and 64 ‘Protection of personal information’ of the Act when processing access to information requests file Nos 105-01-20-17, 015-01-21-17, and 015-01-22-17? [ 110 ] Compliance with the anonymity provision (section 12) and/or the protection of personal information provision (section 64) are issues of breach of privacy for which there is no appeal to this Court.

Instead, Oleynik’s recourse is to file a complaint regarding same with the Intervenor under section 73(1) of the Act : “Where an individual believes on reasonable grounds that his or her personal information has been collected, used or disclosed by a public body in contravention of this Act , he or she may file a privacy complaint with the commissioner.” [ 111 ] Both Memorial and the Commissioner agree that compliance with the anonymity provision (section 12) and the protection of personal information provision (section 64) are issues of breach of privacy for which there is no right of appeal.

Oleynik’s recourse is to file a complaint to the Commissioner under section 73(1) of the Act . [ 112 ] Oleynik submits an appeal lies to the Court when the Court takes a contextual

interpretation of

section 12 in

Part II and

section 64 in

Part III, together with

section 40 in

Part II on disclosure harmful to a third party’s personal privacy. He argues the separation between the two parts is incorrect and artificial. I cannot agree. [ 113 ] Counsel for the Commissioner maintains the Commissioner has exclusive authority to investigate complaints under sections 73 - 80 of the Act that a public body has collected, used, or disclosed personal information in contravention of the Act . The Commissioner has the authority to investigate a complaint (section 74), authority not to investigate a complaint (section 75), authority to make recommendations (section 76), and the obligation to issue a report (section 77). Upon the issuance of a Commissioner’s report,

section 78 is engaged and the public body can decide to comply with the recommendations or apply to the Court under

section 78 for a declaration that it is not required to comply. [ 114 ] I conclude there is no statutory right of appeal under either

section 12 or

section 64 of the Act . Oleynik’s complaint on breach of his privacy is within the exclusive oversight of the Commissioner to investigate and resolve. This is very much in keeping with the statement of our Court of Appeal: “The purpose of the ATIPPA is to create an alternative to the courts”: Newfoundland & Labrador (Attorney General) at para. 78 [8] . conclusion [ 115 ] I make the following determinations on Memorial’s Rule 38 Application: (

i) Whether the extraordinary circumstances threshold under

section 24 was satisfied in 201701G8543 is not appealable under the Act . (ii) Whether a record ought to have been created under the Management of Information Act or Memorial’s policies in 202001G2986 and 202001G4809 is not appealable under

section 54 of the Act . (iii) The duty to assess in

section 13 of the Act is appealable under

section 54 in 202001G2986, 202001G3967; 202001G4524, 202001G4526 and 202001G4809. The Appeals in each will require an assessment of the particular evidentiary record for the Court’s determinations on the reasonableness of Memorial’s effort to respond to the access requests. (iv) The Court has no jurisdiction on an appeal under the Act (as requested in 202001G3967 and 202001G4526) to refer Oleynik's allegations of alteration of records to the Director of Public Prosecutions for the Province. (

v) Whether the Court may order Memorial to notify Oleynik of the disposal date of the subject emails is left for consideration on the evidence and submissions in the 202001G4526 Appeal. (vi) In Appeal 202001G4526, there is no remedial authority under the Act to order Memorial not to break down a request into separate requests without first consulting with applicants. (vii) All relevant information created or gathered for a workplace investigation in Section 33(3) does not override the solicitor-client and litigation privilege in

section 30 of the Act . Whether section 33(3) is paramount to all other exceptions to access enumerated in the

Act is not appropriate for Rule 38 determination and is left for resolution on the evidence and submissions in Appeals 201801G7617, 202001G3681, 202001G4524 and 202001G4809. (viii) There is no right of appeal under the Act to this Court regarding compliance with

section 12 (anonymity) or

section 64 (protection of personal information), as requested in 201701G8543 and 201801G7617. costs [ 116 ] Since all of the determinations are preliminary and do not dispose fully of the Appeals, it is appropriate to give leave to the parties to speak to costs in the Court’s final disposition of each of the Appeals. Order [ 117 ] In accordance with Rule 49.03(1), Counsel for Memorial shall file the appropriate Orders with the Court on the determination of the issues in the Appeals for my endorsement. _____________________________ Glen L.C. Noel Justice

Schedule “A” ACTION ISSUES TO BE DETERMINED VIA RULE 38 DETERMINATION ISSUES LEFT TO BE DETERMINED AFTER RULE 38 DETERMINATION (IF SUCCESSFUL) 201701G8543 1. Whether the Act provides a right of appeal in respect to the extraordinary circumstances threshold set out in section 24(1) of the Act ? 2. Whether there is a right of appeal under the Act to this Court regarding compliance with

section 12 (anonymity) and / or

section 64 (protection of personal information) of the Act ? 1. Whether the subject request for information was either vexatious or would otherwise unreasonably interfere with Memorial’s operations under subsection 21(1) of the Act ?

201801G7617 1. Whether section 33(3) of the Act renders all other exceptions to access enumerated in the Act inoperative, including the exception for solicitor-client and litigation privilege? 2. Whether there is a right of appeal under the Act to this Court regarding compliance with

section 12 (anonymity) and / or

section 64 (protection of personal information) of the Act ? 1. Whether the disregarded portion of one request was properly disregarded on the basis that it was vexatious or otherwise made in bad faith; 2. Whether the disregarded portion of one request was properly disregarded on the basis it is unduly repetitive; 3. Whether the exceptions applied to the legal invoices (s. 30(1)(

a) and s 40(1)) are proper. 4. If the answer to 3 is yes, whether the public interest override nonetheless requires disclosure of the information redacted under section 30(1)(a). 202001G2986 1. Whether this Court may determine whether a record ought to be created pursuant to the Management of Information Act and/or the Respondent’s policies on an appeal under

section 54 of the Act ? 2. Whether the duty to assist in

section 13 of the Act is appealable on an appeal commenced under

section 54 of the Act ? 1. Whether the Act provides a right to access records in native format under the Act (currently before this Court in 202001G1408). NOTE: This issue will be determined in 202001G1408, with the logical result that this action should be entirely disposed of if Memorial University is successful. 202001G3681 1. Whether section 33(3) of the Act renders all other exceptions to access enumerated in the Act inoperative, including the exception for solicitor-client and litigation privilege? 1. If

section 33 does not trump subsection 30(1) and paragraph (29)(1)(a), were those provisions properly applied? If yes, does the public interest override nonetheless require their disclosure? 2. Whether there is a right to access records in native format under the Act (currently before this Court in 202001G1408)? 3. Whether the Court has remedial authority to order a further search for records on an appeal under s. 52 of the Act .

202001G3967 1. Whether the duty to assist in

section 13 of the Act is appealable on an appeal commenced under

section 54 of the Act ? 2. Whether this Court has jurisdiction on an appeal under the Act , or otherwise, to refer Oleynik’s allegations of alteration of records for prosecution of a regulatory offence? 1. Whether records were properly exempted under sections 29(1) (a), 39(1) and 40(1) of the Act ; 2. If the answer to 1 is yes, whether the public interest override nonetheless requires disclosure of information redacted under s. 29(1) (

a) of the Act . 3. Whether the Respondent is required to provide responsive records in native format (which will be determined by the Court in action 202001G1408 in February). 202001G4524 1. Whether the duty to assist in

section 13 of the Act is appealable on an appeal commenced under

section 54 of the Act ? 2. Whether section 33(3) of the Act renders all other exceptions to access enumerated in the Act inoperative, including the exception for solicitor-client and litigation privilege. 1. Does section 30(1) of the Act apply to the subject records? 2. If the answer to 1 is yes, does the public interest override nonetheless require disclosure of the redacted information. 202001G4526 1. Whether the duty to assist in

section 13 of the Act is appealable on an appeal commenced under

section 54 of the Act ? 2. Whether the Court may order the Respondent to notify Oleynik when a record has been destroyed and its authority for doing so on an appeal under the Act ? 3. Whether the Court may order the Respondent not to make any changes in an access to information request without first consulting the applicant? 4. Whether this Court has jurisdiction on an appeal under the Act , or otherwise, to refer Oleynik’s allegations of alteration of records for prosecution of a regulatory offence? Nil

202001G4809 1. Whether the duty to assist in

section 13 of the Act is appealable on an appeal commenced under

section 54 of the Act ? 2. Whether section 33(3) of the Act renders all other exceptions to access enumerated in the Act inoperative, including the exception for solicitor-client and litigation privilege. 3. Whether this Court may determine whether a record ought to be created pursuant to the Management of Information Act on an appeal under

section 54 of the Act ? 1. Are linux settings a “record” to which there is a right of access? 2. If yes, are they a record within MUN’s custody and control? 3. If yes, does section 31(1)(

l) apply to those settings? 4. Does section 31(1)(

l) also apply to the type and configuration of the Linux file server? 5. If yes, does the public interest override nonetheless require disclosure?