Alberta Energy v Alberta (Information and Privacy Commissioner), 2023 ABKB 268

Court of King’s Bench of Alberta Citation: Alberta Energy v Alberta (Information and Privacy Commissioner), 2023 ABKB 268 Date: 20230502 Docket: 2203 08848 Registry: Edmonton Between: Alberta Energy Applicant - and - The Information and Privacy Commissioner, Richard E. Harrison, as counsel for the following parties: E. Macleay Blades, Rocking P Ranch Ltd., John Smith, Plateau Cattle Co. Ltd. Respondents _______________________________________________________ Endorsement of the Honourable Justice Douglas R. Mah _______________________________________________________ A.

Application [ 1 ] The Information and Privacy Commissioner of Alberta (IPC) applies for a Sealing Order under Rules 6.28-6.32 in respect of certain unredacted records that are the subject of a judicial review application. The judicial review relates to the April 6, 2022 decision of the IPC’s delegate (the Adjudicator) ordering the public body, Alberta Energy, to disclose those unredacted records to the Respondent Mr. Harrison and the parties he represents. [ 2 ] The Sealing Order application was made before me in morning civil chambers on April 13, 2023.

It was supported by Alberta Energy (who is the Applicant in the judicial review application) but opposed by Mr. Harrison and his clients, who are the Respondents in the judicial review application. After hearing argument, I advised the parties I would reserve my decision and provide this endorsement. B. Background

[ 3 ] Mr. Harrison represents a group of private ranchers and ranching interests in southern Alberta (the ranchers). In 2020 the Government of Alberta rescinded its long-standing coal mining policy which had restricted coal mining in the mountain area where the ranchers live and conduct their operations (the 1976 Policy). The policy change was opposed by the ranchers and others and, following public discussion, the 1976 Policy was restored in February 2021. [ 4 ] On July 3, 2020 the ranchers through their counsel Mr.

Harrison had made an access to information request to Alberta Energy under the Freedom of Information and Protection of Privacy Act ( FOIP Act ) for records concerning the decision to rescind the 1976 Policy. The request included third-party records.

Alberta Energy twice extended its time for response to the access request under the FOIP Act , and then requested and was granted a further extension by the IPC, partly based on the submission that were 6539 pages of responsive records. [ 5 ] A judicial review decision upholding the IPC’s time extension was issued on September 10, 2021: Blades v Alberta (Information and Privacy Commissioner), 2021 ABQB 725 (Ashcroft J). [ 6 ] On October 15, 2021 Alberta Energy provided an initial response of 30 records to Mr. Harrison and redacted or withheld some responsive records under these FOIP Act provisions: •

section 21: disclosure harmful to intergovernmental relations; •

section 22: Cabinet and Treasury Board confidences; •

section 24: advice from officials; and •

section 25: disclosure harmful to economic and other interests of a public body. [ 7 ] Other information was excluded from these records as non-responsive to the request. [ 8 ] Mr. Harrison requested a review of Alberta Energy’s decision to sever information and its failure to respond in relation to the remaining records. The Adjudicator was appointed to conduct the inquiry. [ 9 ] For the purposes of the inquiry, on February 10, 2022, Alberta Energy provided the Adjudicator with copies of the records at issue in unredacted form (unredacted records). The FOIP Act at

section 69 permits the inquiry to be conducted in private and for the hearing to be in camera while submissions are being made by a party. Consequently, Mr. Harrison and his clients have never seen the unredacted versions of the disputed records. [ 10 ] The Adjudicator issued her decision (Order F2022-20) on April 6, 2022. At para 21, the Adjudicator commented on the evolving number of records that Alberta Energy claimed it was required to review, from 6539 (as suggested to Justice Ashcroft) to 2100 in its most recent submission, suggesting there was actually a total of 2180 responsive records.

The Adjudicator postulated a couple of different reasons for the reduction in number but was still critical of Alberta Energy’s failure to keep Mr. Harrison advised of the changing number. [ 11 ] The Adjudicator found that all of the severed information was responsive and that none of the claimed exceptions to disclosure were valid. She specifically ordered that: • the unredacted records be disclosed; • Alberta Energy respond to Mr.

Harrison in relation to the balance of the records related to the request; • if ultimately the number of records produced is less than 6539 records, Alberta Energy must provide an affidavit to the Adjudicator and Mr. Harrison explaining the difference in number; and • the period for compliance with the foregoing is 50 days from receipt of the Order. [ 12 ] Alberta Energy filed its judicial review application in respect of Order F2022-20 on May 18, 2022.

Section 74(4) of the FOIP Act provides that the IPC’s Order is stayed until the judicial review application is disposed of by the Court. [ 13 ] The IPC filed the Certified Record of Proceedings for the judicial review application on June 13, 2022. The Adjudicator notes that, in preparing the Record, the unredacted records in dispute are not included because of non-disclosure obligations imposed by section 59(3)(

a) of the FOIP Act . [ 14 ] The IPC makes this Sealing Order application in order that the unredacted records be available for review by the judge conducting the judicial review, and no one else. Since the very issue in the judicial review is whether the redacted portions of the records are secret, the inclusion of the whole of the unredacted records in the public court file would render the judicial review application nugatory. C.

IPC submissions [ 15 ] Counsel for the IPC submitted that: • section 59(1) imposes a duty on the IPC or delegate not to disclose any information obtained in the performance of the duties, powers and functions under the FOIP Act; • section 59(3) imposes a duty on the IPC or delegate to take every reasonable precaution to avoid disclosing and must not disclose

records subject to an investigation or inquiry under the FOIP Act; • forcing the IPC to make the unredacted records part of the public Certified Record of Proceedings for the purposes of the judicialreview application is contrary to the cited FOIP Act sections; • this conundrum was recognized by Ross J in Edmonton Police Service v Alberta (Information and Privacy Commissioner), 2012ABQB 595 and resolved by the Court taking receipt of the records under a Sealing Order (at paras 16-18); and • the statutory regime in place here renders consideration of the common law requirements for a restricted access Order, as set out inSierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41 and refined in Sherman Estate v Donovan, 2021 SCC 25,unnecessary. [16] The requisite notice of this application to the media was given.

D. Mr. Harrison’s Position [17] Mr.

Harrison opposes the granting of a Sealing Order on these grounds: • The judicial review application plainly has no merit; the Court should take a more purposeful approach and impose a requirementof merit on a party seeking to rely on sections 59(1) & (3) in a judicial review situation; • The judicial review application itself is politically motivated; once the upcoming provincial election is decided, the unredacteddocuments will be voluntarily produced; • Alberta Energy has acted in bad faith by “lying” to Justice Ashcroft about the number of documents, in order to buy more time; • His clients have an unequivocal right to the information; the very purpose of access to information is to facilitate democracy andkeep government accountable: Dagg v Canada (Minister of Finance), (SCC), [1997] 2 SCR 403 at para 61; and theadjudicative process under such legislation should be streamlined to facilitate accessibility and timeliness: Information and PrivacyCommissioner of Alberta v Board of Governors of the University of Calgary, 2016 SCC 53 at para 113 (Alberta IPC); and • The Court should not allow itself to be an instrument for perpetuation of unfairness and power-imbalance, deliberate delay and thedenial of democratic rights. [18] These assertions came in by way of submission only.

There was no affidavit supporting the allegation of political motive. E. Alberta Energy’s Position [19] Alberta Energy’s counsel aligned itself with the IPC’s counsel in terms of the rationale for the Sealing Order.

Also: • He took umbrage with the characterization of Alberta Energy “lying” about the number of records and said there was no evidenceregarding an explanation for the reduction; • Similarly, counsel disagreed with the suggestion that the judicial review was election-related, for which he said there is also noevidence; • He submitted there is no “merit test” found in the legislation, i.e. the merit of one party’s position or the other plays no role inwhether the non-disclosure duties in

section 59 should be enforced; and • In any event, it is premature and inappropriate for the Court to make any conclusion about the merits of the judicial reviewapplication. Counsel invited me to review his Originating Application for Judicial Review and note the various heads of argument. F. Ruling [20] I have decided that the Sealing Order should be granted as requested, for these reasons: • Not granting the Sealing Order would mean the unredacted documents, with their disputed content, would become part of thepublic record.

That would defeat the entire purpose of the judicial review, and of sections 59(1) & (3). • I cannot justify such an outcome on the basis that the judicial review has no merit. I would, in effect, be summarily dismissing thejudicial review. No application for

summary dismissal was brought, nor can I reach that conclusion from just reading the Adjudicator’sdecision, as suggested by Mr. Harrison. While Mr. Harrison may well feel that the judicial review application has no merit, the mattermust still be heard and decided with the benefit of the Record, briefs and argument. Manifest absence of merit can be addressed throughcosts at the end. • There is no part of sections 59(1) & (3) that says the duties thereunder will only be enforced if the party favouring enforcementhas a meritorious case on judicial review.

If I were to so hold, I would be unlawfully augmenting the legislation. • Similarly, there is no legislative provision permitting the Court to override or relieve the obligations imposed by sections 59(1) &(3).

• In relation to the last two points above, I cite the Court of Appeal in R v Baker , 2023 ABCA 136 at para 56 : “ … if the text bears only one permissible meaning, there should be no power of the courts to adjust that explicit meaning for some external objective howsoever desirable.” • Besides, it is the IPC who invokes on sections 59(1) & (3) as giving rise to the need for a Sealing Order, not Alberta Energy. The IPC only wishes to ensure the right records are in the Court’s hands for the judicial review application, while remaining in compliance with its statutory obligations.

While Alberta Energy supports the granting of the Sealing Order for the rationale cited by the IPC, it does so for the purpose of preserving its rights pending the judicial review. As the adjudicator whose decision is being judicially reviewed, the IPC would not be expected to take an active role in arguing the merits, particularly where there are two adverse and fully-represented parties participating: Leon’s Furniture Limited v Alberta (Information and Privacy Commissioner) , 2011 ABCA 94 at para 28 .

It would be impractical to permit the IPC to rely on these sections only if the judicial review application is meritorious, when the IPC has limited or no say on the merits. • As Ross J observed in Edmonton Police Service and before her, Verville J in Alberta (Employment and Immigration) v Alberta Federation of Labour , 2009 ABQB 344 at para 54 , sections 59(1) & (3) are plain in their effect. From a Rule-of-Law perspective, it would be wrong for me to force the Adjudicator here to violate the IPC’s own legislation. • It is regrettable that the process of obtaining disclosure has been so prolonged for Mr.

Harrison and his clients. Even so, the process undergone in this case, including the as-yet unadjudicated judicial review application, is contemplated in the legislative scheme. The delay is not indefinite. A hearing date of October 12, 2023 has been set. • I agree that that access to information legislation should facilitate and advance democracy and government accountability. But access is not absolute.

As Verville J pointed out in Alberta (Employment and Immigration) at para 54 , there are public policy-based exceptions to disclosure found at sections 16-29 of the FOIP Act that are aimed at promoting functional government and which are also integral to the province’s overall access regime.

The judicial review application to be heard deals with the applicability of some of those exceptions in this case. • I agree with the IPC’s counsel that the presence of sections 59(1) & (3) in this case renders the analysis in Sierra Club/Sherman Estate unnecessary. • The Sealing Order solution found by Ross J in Edmonton Police Service hits all the right notes in terms of fidelity to the applicable legislation and the Rules of Court, and preserving the rights of the litigants pending adjudication of the judicial review matter.

It is the appropriate remedy in this case. • Finally, I agree with Alberta Energy’s counsel that there is no actual evidence of Alberta Energy having “lied” to Justice Ashcroft about the number of documents or that the judicial review application is politically motivated. These allegations, provided there is an evidentiary basis, can be pursued at the judicial review application itself or in a costs discussion afterwards. [ 21 ] The draft Order was previously circulated.

Counsel for the IPC is directed to submit a signing copy of the draft Order to me using the King’s Bench electronic filing protocol. [ 22 ] I am not sure whether Mr. Harrison, by opposing the Sealing Order request, was merely registering his clients’ displeasure over the delay in obtaining disclosure of these records (as a form of protest as it were), as opposed to actually expecting me to override the legislation and this Court’s precedent. In either event, any request for costs of the application before me shall be dealt with by the judge hearing the judicial review. Heard on the 13 st day of April, 2023.

Dated at the City of Edmonton, Alberta this 2 nd day of May, 2023. Douglas R. Mah J.C.K.B.A. Appearances:

Sean McDonough, Alberta Justice and Solicitor General for the Applicant, Alberta Energy Jillian Harker, Office of the Information and Privacy Commissioner for the Respondent, IPC Richard E. Harrison, Wilson Laycraft for the Respondents, E. Macleay Blades, Rocking P Ranch Ltd, John Smith and Plateau Cattle Co Ltd