R. v. Walker, 2020 NLCA 19

College of the North Atlantic (appellant) v. Peter McBreairty (first respondent) and Information and Privacy Commissioner ofNewfoundland and Labrador (second respondent) (16/95) Indexed As: College of the North Atlantic v. McBreairty 2020 NLCA 19 5 C.A.N.L.R. 498 Court of Appeal of Newfoundland and Labrador Green, White, and Harrington* JJ.A. June 3, 2020

Summary: Peter McBreairty submitted a request under the Access to Information and Protection of Privacy Act relating to vacation leave payoutgiven to the Interim President and Vice-President Academic of the College of the North Atlantic-Qatar (“CNA-Q”), an institution beingoperated by the College of the North Atlantic (“CNA”) under an agreement with the government of Qatar.

CNA provided the relevantdocument containing the names of two of the three people who signed the payment authorization; CNA redacted the name of the personoccupying the position of Human Resources Officer in CNA-Q on the basis that the person was not an “employee” of CNA ascontemplated by the Act, but rather a “local hire” employed by the State of Qatar. Mr. McBreairty then requested that the Informationand Privacy Commissioner review CNA's decision to redact the Human Resources Officer’s name.

The Commissioner concluded thatthe individual was an employee of CNA and stated that the name should be disclosed; the Commissioner’s decision was arecommendation and was not binding on the parties. CNA still refused to disclose the information. Mr. McBreairty appealed CNA’sdecision to the Supreme Court, with the Commissioner intervening in support of Mr. McBreairty. The judge allowed Mr. McBreairty’sappeal and ordered CNA to provide Mr. McBreairty with the requested information, including the name of the Human ResourcesOfficer.

CNA appealed the decision, arguing that the judge erred in finding that the Human Resources Officer in CNA-Q was anemployee of CNA within the meaning of the Act. Held: Appeal dismissed. Green J.A. (White J.A. concurring): While the judge erred in his description of the scope of the potential application of the definition of“employee” under the Act, the proper

interpretation, based on the words used, the statutory context and the purpose of the Act, whenapplied to the facts of the case supports the conclusion reached by the judge. The Human Resources Officer was an employee of CNAfor the purpose of the Act. Therefore, CNA was required to provide Mr. McBreairty with access to the part of the record that waspreviously redacted (paragraphs 31-107). Cases cited: Stevenson Jordan and Harrison, Ltd. v. Macdonald, [1952] 1 T.L.R. 101 (C.A.) 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983 Hôpital-Notre Dame de L’Esperance v.

Laurent, (SCC), [1978] 1 S.C.R. 605 R. v. Walker (1858), 27 L.J.M.C 207 Montreal (City) v. Montreal Locomotive Works Ltd., (UK JCPC), [1947] 1 D.L.R. 161 (J.C.P.C.) Co-Operators Insurance Association v. Kearney, (SCC), [1965] S.C.R. 106 Point-Claire (City) v. Quebec (Labour Court), (SCC), [1997] 1 S.C.R. 1015 Mersey Docks and Harbour Board v. Coggins and Griffiths (Liverpool) Ltd., [1947] A.C. 1 (H.L.)

Archean Resources Ltd. v. Newfoundland (Minister of Finance), 2002 NFCA 43, 215 Nfld. & P.E.I.R. 124 Lynch v. St. John’s (City), 2016 NLCA 35, 380 Nfld. & P.E.I.R. 13 Z.B. v. Provincial Director of Adults in Need of Protective Intervention, 2020 NLCA 17 Newfoundland and Labrador (Information and Privacy Commissioner) v. Newfoundland and Labrador (Attorney General), 2011 NLCA69, 314 Nfld. & P.E.I.R. 305 Dagg v. Canada (Minister of Finance), (SCC), [1997] 2 S.C.R. 403 National Bank of Greece (Canada) v. Katsikonouris, (SCC), [1990] 2 S.C.R. 1029 Dominion of Canada General Insurance Co. v.

Aviva Canada Inc., 2015 ONSC 6195 Statutes considered: Access to Information and Protection of Privacy Act, SNL 2002, c. A-1.1, sections 2, 3, 7, 12(1)(c), 30, 33(2)(c), 39-40, 53(b), 64(1),69(2)(d), 73(

c) Interpretation Act, RSNL 1990, c. I-19,

section 16 Counsel: J. Alexander Templeton, for the appellant; No appearance, for the first respondent; Andrew Fitzgerald, for the second respondent. The appeal was heard on June 13, 2018 before Green, White and Harrington* JJ.A. The following judgment was filed on June 3, 2020 by Green J.A. for the Court. *Harrington J.A. took no

part in the judgment pursuant to section 15(3) of the Court of Appeal Act, SNL 2017, c. C-37.002. ______________________________________________________________ Green J.A.: [1] Referring to the “troublesome question of the distinction between a contract of service and a contract for services”, Lord JusticeDenning in Stevenson Jordan and Harrison, Ltd. v. Macdonald, [1952] 1 T.L.R. 101 (C.A.) observed that “It is often easy to recognize acontract of service when you see it, but difficult to say wherein the difference lies” (p. 111).

The question of when a relationship of employer and employee (formerly called master and servant or a contract of service), as opposed to some othertype of work-related association, exists has bedeviled lawyers, judges, business persons and public officials in a variety of legal contextsfor centuries. There is often no easy or universal answer, given the multifarious circumstances in which the issue presents itself and theincreasingly diverse work-related relationships that exist. [2] This appeal deals with the

interpretation of the word “employee” in the Access to Information and Protection of Privacy Act, SNL 2002, c.

A-1.1[1] in the context of a request for information from a public body which was refused on the ground, amongst others,that the information constituted personal information relating to a person who was not an employee of the public body. [3] The question of whether a person signing a form authorizing payment of vacation pay to an individual was an employee of apublic body determines, in this case, whether another person seeking access to that information can be provided with the name of theauthorizing person.

Background [4] Peter McBreairty submitted an access to information request under the Act to the College of the North Atlantic (CNA) relating toa vacation leave payout given to the Interim President and Vice President Academic of the College of the North Atlantic-Qatar (CNA-

Q), an institution being operated by the College in Qatar under an agreement with the government of Qatar. Although providing services to CNA-Q, the Interim President’s contract of employment was with CNA. Mr. McBreairty sought documents that showed the total hours or days that the Interim President was paid in arriving at the calculated payout amount together with: The names and/or signatures of the College personnel who approved the “vacation leave payout.” [ 5 ] This latter request is central to the issues in this appeal.

CNA provided the relevant document containing the names of two of the three persons who signed the payment authorization but redacted the third name, the person designated as the Human Resources Officer. According to the evidence given in the hearing in the Court below, a third signature was necessary for the payment authorization to be effective. [ 6 ] The reason given by CNA for redacting the name was that the identity of the person was “personal information” within the meaning of section 30(1) of the Act .

Because the person was not an “employee” of CNA but a “local hire” employed by the State of Qatar, though working within CNA in Qatar, the provisions of the Act permitting disclosure of personal information relating to employees were not applicable. CNA conceded that the other two persons who signed the document were employees of CNA and hence their names were disclosed. [ 7 ] As he was permitted to do under the Act , Mr. McBreairty asked the Information and Privacy Commissioner to review the CNA’s refusal to provide the third name. The Commissioner sided with Mr. McBreairty.

He concluded that the individual was an employee of CNA and stated that there should be disclosure. The Commissioner’s decision had the force only of a recommendation and was not binding. CNA still refused to disclose. Mr. McBreairty appealed the refusal to the Trial Division of the Supreme Court as permitted by the Act . The Commissioner intervened in support of Mr. McBreairty. [ 8 ] At the hearing, CNA filed affidavit evidence from its Vice-President of Finance and Administration, John Hutchings. He also gave viva voce evidence and was extensively cross-examined.

He deposed that the person in question was a “local hire”, not an employee of CNA, and never had a contractual relationship with the CNA. He also stated that CNA and CNA-Q were separate and distinct legal entities.

He explained: The College of Technology branded as CNA-Qatar is owned by the State of Qatar, but is managed and operated by CNA pursuant to an agreement between CNA and the State of Qatar, known as the “Comprehensive Agreement”, in which CNA agreed to establish, manage and operate a branch campus of CNA to be known as College of the North Atlantic in Qatar (“CNA-Qatar”) and for which CNA receives a management fee for use of its name. The Comprehensive Agreement was signed in 2001. [ 9 ] Mr. Hutchings also deposed that the manner of payment and discipline of local hires differed from that of “Canadian hires”.

Local hires were paid in local currency and were disciplined in Qatar without input from representatives of CNA, whereas Canadian hires were paid in Canadian dollars and disciplined by CNA in Newfoundland and Labrador. [ 10 ] Mr. Hutchings’ description of the relationship between CNA and CNA-Q did not fully comport with the Comprehensive Agreement to which he referred.

This agreement was entered into between CNA and the State of Qatar to govern their relationship relative to the establishment and operation of “world class technological programs that will receive Canadian and international accreditation.” Amongst other things, it outlined the nature of the services that CNA was obligated to provide to the State of Qatar with respect to the operation. [ 11 ] Of interest at this point is the recital in the agreement that referred to a detailed business plan … for the establishment, management and operation of a branch campus of CNA to be known as the “College of the North Atlantic in Qatar” (the “College”); [ 12 ] The rest of the agreement sets out in considerable detail the obligations of CNA with respect to the establishment, management and operation of “the College”, which is identified in the recital as “a branch campus of CNA”.

On its face, therefore, the agreement purports to contemplate CNA operating a branch campus in Qatar in much the same way in which it operates numerous campuses in the province of Newfoundland and Labrador.

In fact, in the business plan which is attached as an appendix to the agreement and incorporated by reference therein, this concept of operating a branch campus is emphasized by the following language dealing with “Governance, Structure and Systems”: As with other campuses of College of the North Atlantic , the CNA Board of Governors through the President of CNA will govern the Qatar Campus. (Emphasis added.) [ 13 ] Although the business plan also later recognizes that the governance structure of the Qatar campus is “somewhat anomalous” because certain functions such as specifying academic programs and setting enrolment targets (but nothing with respect to employment issues) were to be delegated to a Joint Oversight Board, the plan nevertheless reaffirms the basic concept of the Qatar operation being that of a campus of CNA: While CNA’s Board of Governors retains sole responsibility for the overall governance and administrative oversight of the Qatar campus, as it does with any other CNA campus , the comprehensive agreement contractually empowers the Joint Oversight Board (“JOB”) to perform … (Emphasis added.) [ 14 ] Later in the business plan, under the heading “Legal Considerations” the following occurs: … usually it is the Board that is formally constituted as the legal corporate personality of the institution.

That is, it is actually the

governing body and only the governing body that has the capacity to sue and be sued. In the case of the Qatar campus, the legal personality continues to vest in CNA’s Board of Governors. (Emphasis added.) [ 15 ] Certainly one inference to be drawn from these provisions is that, contrary to Mr. Hutchings’ assertions, the Qatar operation and CNA were not intended to be “separate and distinct legal entities”; rather, the Qatar operation was to be established, managed and operated as an integrated campus of CNA. Mr.

Hutchings confirmed in his viva voce evidence that credentials issued to students who studied in CNA-Q were credentials issued by CNA just as if the students had been studying at one of the other CNA campuses. [ 16 ] Regarding management and control of employment matters, the comprehensive agreement stipulated, amongst other things, that once the College (i.e. CNA-

Q) became operational the following obligations applied: 2.1.1 … During the Operational Period, the Contractor [i.e. CNA] shall operate and manage the College [i.e.

CNA-Q] according to the terms of this Agreement and each approved Annual Plan and Budget (as defined herein). 2.1.2 Subject to the license terms set forth in this Agreement, CNA shall transfer to Qatar, and implement at the College, all of CNA’s academic, industrial, business and management practices, including … CNA’s management information system and financial management policies and procedures; and human resources policies and procedures for the recruitment, retention, and advancement of faculty and staff . … 2.1.10 The Contractor [i.e CNA] shall be responsible for recruiting, employing, and managing all administrative personnel , faculty and staff for the College [CNA-Q]].

The President and other key administrative positions, as well as the majority of faculty and staff, shall be recruited from the existing employees of CNA. Other faculty and staff shall be recruited by the Contractor from among the employees of other Canadian colleges of the same standard as CNA, provided that the Contractor shall also consider recruitment of qualified individuals who are citizens or residents of Qatar , or individuals from the international market. 7.1 All personnel recruited for the College shall be employees of the Contractor [i.e. CNA]. Contactor employees at the College [i.e.

CNA-Q] shall be compensated by the Contractor in accordance with the remuneration rates specified … 7.3 The College [i.e. CNA-Q] shall be under the direction of a full-time, on site administrative staff which shall include: (

a) a President who shall… report to the President of CNA; (

b) a Vice President …; (

c) an Academic Council that shall advise and support the President; and (

d) such other administrative personnel as are reflected in, as applicable, the Start-Up Budget or an approved Annual Plan and Budget. The Contractor [i.e. CNA] shall appoint the President, the Vice President … and all such other administrative staff; provided, however, that the President and Vice President … shall be appointed in consultation with, and subject to the approval of, Qatar. (Emphasis added.) [ 17 ] The comprehensive agreement did not differentiate between “Canadian hires” and “local hires” (to use Mr. Hutchings’ terminology) in terms of the manner of recruitment, employment and management.

On the contrary, it appeared to envisage CNA-Q operating and being managed as an integrated institutional whole by virtue of CNA management insofar as employment matters were concerned, regardless of the origin of the employee concerned. No mention was made of personnel working in CNA-Q who were recruited and paid under a contract directly with CNA-Q – or with anyone else such as the State of Qatar ̶ instead of a contract with CNA.

Indeed, under the structure of the comprehensive agreement, that would make no sense, since CNA-Q was regarded under the agreement merely as a campus of CNA and not a separate legal entity, as suggested by Mr. Hutchings. As contemplated in

Article 2.1.10, residents of Qatar could be hired by CNA. Whether that was under the guise of CNA-Q or CNA made no difference since both “entities” were regarded under the agreement as one and the same. [ 18 ] When challenged on cross-examination as to the basis for his assertion that “CNA and CNA-Qatar are separate and distinct legal entities”, Mr. Hutchings was not able to point to any document that purported to create CNA-Q as a separate legal entity from CNA.

He referred to what he believed was a decree from the Emir of Qatar but he said he had not seen it and was essentially making assumptions about it. [ 19 ] With respect to Mr. Hutchings’ distinction between Canadian hires and local hires, he continued to insist that local hires were not employees of CNA and that indications to the contrary in the comprehensive agreement were not being followed in practice. He acknowledged, however, that both local hires and Canadian hires were supervised by CNA staff. They were all “reporting to somebody in the organizational structure”. [ 20 ] It was Mr.

Hutchings’ position that the terms of the comprehensive agreement did not fully reflect how the Qatar campus was operated in practice, notwithstanding the fact that the comprehensive agreement contained a clause to the following effect: 12.11 … No changes, amendments or modifications of the terms or conditions of this agreement shall be valid unless reduced to writing and signed by the Parties. [ 21 ] This discrepancy between Mr.

Hutchings’ presentation of the relationship between CNA as an institution and the campus in Qatar and the way in which it was presented in the comprehensive agreement affects the nature of the arguments made on the appeal as they relate to the status of the Human Resources Officer. The Decision Under Appeal [ 22 ] The judge allowed the appeal and ordered CNA to provide Mr. McBreairty: “access to the part of the record redacted on pages 1 and 2 of the record of the documents previously provided to him”, thereby entitling Mr. McBreairty to be advised of the name of the

Human Resources Officer. In reaching this conclusion, the judge concluded that the Human Resources Officer was to be regarded as an “employee” of CNA within the meaning of ss. 2(

e) and 30(2)(

f) of the Act . The definition of employee in the Act , while not providing a comprehensive definition, reads: 2(e) “employee”, in relation to a public body, includes a person retained under a contract to perform services for the public body. [ 23 ] The judge approached the matter on the basis that the onus was on CNA, as the public body under scrutiny, to prove on a balance of probabilities that Mr. McBreairty had no right of access to the unredacted record.

This allocation of the burden of proof, and the standard to be applied in satisfaction of that burden, are not at issue on this appeal. [ 24 ] The judge rejected Mr. Hutchings’ evidence that CNA and CNA-Q were separate legal entities. He further refused to accept Mr. Hutchings’ evidence that the comprehensive agreement between CNA and the State of Qatar was not reflective of the true relationship between CNA and the campus on the ground in Qatar. He was obviously unimpressed with Mr.

Hutchings’ evidence on these matters: [177] I was surprised that more detailed evidence (such as a statement from the State of Qatar or copies of appropriate amendments to the Comprehensive Agreement) was not provided by [CNA] to support their argument of separate and distinct legal entities which impacts on the parties. [178] With the greatest respect to the parties to the Comprehensive Agreement, I find it rather unusual that the parties operated under the Comprehensive Agreement in such a seemingly informal manner without putting in writing (as required by

Article 12.11) the changes made over time. The parties are dealing with a large enterprise, one that has been very beneficial for both and one that has grown significantly over the years. [ 25 ] He summed up his conclusions on the evidence as follows: [180] I find the evidence is not clear, convincing and cogent on a balance of probabilities to support the manner of operations between the parties to the Comprehensive Agreement as described by Mr. Hutchings in his testimony. I also find the written Comprehensive Agreement dated in or about 2001 governs the relationship between the College [i.e. CNA] and the State of Qatar with

Article 2.1.10 making the College as the Contractor responsible for recruiting, employing and managing all administrative personnel, faculty and staff for the campus. [ 26 ] Having satisfied himself as to what the legal relationship between CNA and CNA-Q was (and was not), and who was allocated responsibility for recruiting and managing persons working within the institution in Qatar, the judge then turned to the question of whether the Human Resources Officer could be said to be an “employee” of CNA, as a public body, for the purposes of the Act .

Although the judge did not make any finding as to how the Human Resources Officer was paid, who supplied the funds or with whom his or her formal contract was made, it is apparent that he approached the question of whether the Officer could be said to be an employee of CNA on the assumption that there was in fact no contract of employment between the person occupying the position and CNA. This is evident because it was the submission of CNA, supported by Mr.

Hutchings’ evidence, that the Human Resources Officer was a “local hire” who did not have a contract with CNA and that this fact, among others, meant that the Officer could not be an employee of CNA. [ 27 ] The judge determined that the word “employee” in s. 2(

e) had to be considered in the context of the whole statute with a view to giving it a meaning harmonious with the statutory scheme and purpose (Judgment, paras 182-184). He concluded that the term extended beyond the “evidentiary or traditional” meaning of “someone who is employed by another”. He reasoned: [187] The use of the word “includes” suggests that the Legislature was not restricting the definition of “employee” to its ordinary or traditional meaning or to a person retained under a contract to perform services.

It is, therefore, reasonable to find that the Legislature purposely drafted the definition as it did to allow it to be considered in circumstances other than those noted in the previous sentence. Each set of circumstances would have to be assessed on its particular facts. For example, if an individual were part of an institutional structure (the College) and was performing a service that assisted the College to carry out its mandate , it is not unreasonable to find that the individual is an employee for the limited purposes of this Act . That

interpretation would certainly be in keeping with the principle set out in Merck Frosst Canada Ltd. v. Canada (Health) 2012 SCC 3 , [2012] 1 S.C.R. 23 that such legislation must be given a broad and purposive

interpretation. I, therefore, find that in the circumstances of this matter, the individual in question is an employee of [CNA] within the meaning of para. 2(

e) of the Act . (Emphasis added.) [ 28 ] It appears from the judge’s reasoning that he was concluding that the Human Resources Officer was part of the “institutional structure” of the Qatar campus which was being operated and managed by CNA pursuant to the comprehensive agreement and that the work performed by that position was an integral part of the college operations (“to carry out its mandate”).

This approach is reminiscent of Lord Denning’s formulation of the “organization test” in the Stevenson Jordan case: One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business and his work is done as an integral part of the business; whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it. (p.111) [ 29 ] While the organization test has not been universally accepted and applied in all circumstances, it is an approach that is recognized as having utility in many situations. [ 30 ] It followed from the judge’s finding that the Human Resources Officer was an employee of CNA that CNA, as a public body under the Act, was, by virtue of s. 30(2)(f), not entitled to refuse to disclose “personal information” (which, by virtue of s. 2(o), included an individual’s name) relating to the Human Resources Officer.

Issues

[31] The central issue to be resolved on this appeal is whether the applications judge erred in his determination that the personoccupying the position of Human Resources Officer in CNA-Q was an employee of CNA within the meaning of s. 2(

e) of the Act. [32] CNA submits that the judge erred in two ways. First, it says he gave much too wide an

interpretation to the notion of anemployee within the context of the Act, and secondly, he made a palpable and overriding error by failing to make a finding of factessential to the ultimate determination of whether the Human Resources Officer was an employee of CNA. [33] The standard of appellate review relative to the first submission is one of correctness, since it is an issue of statutoryinterpretation, a question of law. [34] The standard of review on the second issue is more complex. If, as suggested, the judge failed to make a fundamental factualdetermination that was necessary for him to apply the correct

interpretation of the legislation, that would constitute an error of law,calling for a standard of correctness. On the other hand, if it can be said that, either expressly or by implication, he must have made thenecessary factual determinations to enable the correct

interpretation to be applied, then any error made by the judge in the application ofthe law to the facts would require the appellant to show a palpable and overriding error to be successful on this issue. Determination of Employee Status General Principles [35] The question of whether a person is an employee can arise is a variety of contexts at common law and under applicable statutes.There is no litmus test that is universally applicable (671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2S.C.R. 983 at paras 46, 48).

Context and the policy objectives of the underlying applicable principles, such as the law of vicariousliability or the law of wrongful dismissal or the applicable statute, are the main determinants of how the issue is approached in a givencase. [36] In the common law context, the courts have developed a number of differing tests depending on the factual circumstances andthe nature of the legal issues that are engaged. They have included tests based on (

i) control of the manner of performing the work(Hôpital-Notre Dame de L’Esperance v. Laurent, (SCC), [1978] 1 S.C.R.605, at p. 613, adopting R. v. Walker (1858), 27L.J.M.C 207); (ii) multi-factor considerations involving the degree of control, the ownership of work equipment and tools, chance ofprofit and risk of loss (Montreal (City) v. Montreal Locomotive Works Ltd. (UK JCPC), [1947] 1 D.L.R. 161(J.C.P.C.); (iii) organizational integration (Stevenson Jordan; Co-Operators Insurance Association v.

Kearney, (SCC),[1965] S.C.R. 106); and (iv) the “total relationship” between the putative employer and putative employee, involving focusing on allcircumstances impinging on the work relationship or environment that could lead to a conclusion that supports the policy underlying thelegal principle that is at stake (Sagaz Industries at para. 47). [37] Simple reliance on the presence of a contractual relationship between the worker and the putative employer or on who actuallyissues the paycheque is not necessarily determinative (Point-Claire (City) v. Quebec (Labour Court), (SCC), [1997] 1S.C.R. 1015 at para. 58).

This is evident from the cases determining who is an employee when the worker is temporarily transferredfrom one work environment to another managed and operated by a different “employer” (Sagaz Industries; Mersey Docks and HarbourBoard v. Coggins and Griffiths (Liverpool) Ltd., [1947] A.C. 1 (H.L.)). [38] When the issue arises in the context of application of a statute, the issue can be even more complex. Obviously, if the statutecontains a definition of the term “employee” that will be the initial source of meaning.

Frequently, however, the definition (as in thecurrent case) is not expressed in exclusive terms and in any event is often expressed in such generality that it is not very helpful forapplication in concrete cases. The courts are often effectively left with having to put flesh on the definitional skeleton.

In suchcircumstances, the courts sometimes rely on common law concepts, to the extent that the legislation is not inconsistent with thoseconcepts, on the presumption that the legislators must have had those notions in mind when developing and expressing their statutoryformula. [39] In the end, however, the result is determined by the legislation, construed according to proper interpretive principles. Thatrequires construing the actual words used in their statutory context harmoniously with the scheme of the statute and its underlyingpurpose.

The exercise involves reconciling the words used with all other indicators of meaning, including the mischief against which theremedial nature of the statute is directed, as well as the context of the surrounding legislative text and related statutes and the socialcontext out of which the provision arose, leading to, by inference therefrom, the purpose or object of the provision under consideration(Interpretation Act, RSNL 1990, c. I-19, s. 16; Archean Resources Ltd. v. Newfoundland (Minister of Finance), 2002 NFCA 43, 215Nfld. & P.E.I.R. 124 at paras. 22-23; Lynch v. St.

John’s (City), 2016 NLCA 35, 380 Nfld. & P.E.I.R. 13 at paras. 75-78, 79; Z.B. v.Provincial Director of Adults in Need of Protective Intervention, 2020 NLCA 17 at paras. 69-70). [40] In the context of the Act in issue in this litigation, this Court has described the “mandated approach” as requiring the courts to gobeyond the plain meaning of the words and to give it “a contextual, purposive

interpretation” (Newfoundland and Labrador (Informationand Privacy Commissioner) v. Newfoundland and Labrador (Attorney General), 2011 NLCA 69, 314 Nfld. & P.E.I.R. 305 at para. 28). [41] The emphasis on a contextual and purposive approach to construction is particularly important in the current context, where thelegislation does not provide a comprehensive definition of “employee”. It is axiomatic that different statutes have different policyobjectives.

If the policy objective of a particular statute is not to be frustrated, then an interpretive exercise must be guided by theunderlying objective, or purpose, of that statute. As Lamer C.J. observed in Point Claire (City), when determining who was an employerunder the Canada Labour Code for the purpose of determining the scope of a labour bargaining unit, “Each of the labour statutes has adistinct object and its provisions must be interpreted on the basis of their specific purpose” (para. 61).

Thus, the purpose and policyobjectives of the Act in this case will provide important guidance as to the meaning and scope of “employee” in the applicable statutorycontext. Structure of the Legislation

[ 42 ] The Act is divided into seven parts. The key parts for present purposes are Parts II and III which deal with access to records in the custody or under the control of public bodies.

Part IV is also relevant in that it deals with protection of privacy, which inevitably intersects with and tempers interests relating to records access. The remaining parts contain either general provisions relating to

definitions, statements of purpose, the Office of the Information and Privacy Commissioner, enforcement, appeals or ancillary provisions. [ 43 ] Subsection 7(1) in

Part II recognizes a general right of access by any person to a record in the custody or under the control of a public body. It is acknowledged by the parties that CNA is a public body for this purpose. A “record” is defined by s. 2(

q) as “a record of information in any form and includes information that is written, photographed, recorded or stored in any manner, but does not include a computer program or a mechanism that produced records on any storage medium.” The unredacted document containing the name of the Human Resources Officer that is in issue in this case falls within this definition. [ 44 ] The broad right of access recognized by s. 7(1) is qualified by s. 7(2) which provides:

(2) The right of access to a record does not extend to information exempted from disclosure under this Act, but if it is reasonable to sever that information from the record, an applicant has a right of access to the remainder of the record. [ 45 ]

Part III contains provisions that identify various categories of information which are exempted from the right of access, as contemplated by s. 7(2). In some cases disclosure is forbidden; in others, the head of the public body is given discretion to refuse to make disclosure. The relevant provision for the purposes of this case is s. 30 dealing with disclosure of “personal information”: 30

(1) The head of a public body shall refuse to disclose personal information to an applicant. (2) Subsection (1) does not apply where … (

f) the information is about a third party’s position, function or remuneration as an officer, employee or member of a public body … [ 46 ] There is thus a general exemption from disclosure of any “personal information” but that exemption does not apply in respect of information about the position, function or remuneration of an “employee” of the public body. “Personal Information” is defined: 2(o) “personal information” means recorded information about an identifiable individual, including (

i) the individual’s name, address or telephone number, … [ 47 ] In this case, the Human Resources Officer is an identifiable individual and it is his or her name that is in issue. Accordingly, that name is prima facie personal information which, without more, is exempted from the right of access. But, the exemption from access does not apply to a “third party’s” position, function or remuneration as an “employee” of the public body. A “third party” is any person other than the person who made the request or a public body (s. 2(t)).

Since the Human Resources Officer is neither the requestor nor the public body, he or she is covered by the exception to the exemption provided he or she is an “employee” of CNA, the public body concerned. [ 48 ] Thus, the question engaged on the appeal is whether the Human Resources Officer who signed the document to which Mr. McBreairty sought access is an “employee” of CNA. [ 49 ]

Section 2(e), as noted earlier, provides: “employee”, in relation to a public body, includes a person retained under a contract to perform services for the public body; [ 50 ] Before engaging in an analysis of what the term “employee” means in the context of the Act , it is necessary to consider

Part IV of the Act , which deals with the other major subject of the legislation, the protection of privacy. There is an ever-present tension between the notions of privacy and access to information. If each is to be given room for operation, especially in the one piece of legislation, they have to be applied and interpreted in a manner that is complementary to each other. [ 51 ]

Part IV places restrictions on the type of, and circumstances when, personal information may be collected by a public body. Once properly obtained,

Part IV also purports to regulate the circumstances when a public body may use and disclose that information.

Part IV contains general prohibitions on disclosure of personal information by the public body regardless of whether any person has made a request for access. Sections 39 and 40 provide in relevant part: 39(1) A public body may disclose personal information only (

a) in accordance with Parts II and III; (

b) where the individual the information is about has identified the information and consented to the disclosure in the manner set by the minister responsible for this Act; (

c) for the purpose for which it was obtained or compiled or for a use consistent with that purpose as described in

section 40; (

d) for the purpose of complying with

an Act or regulation of, or with a treaty, arrangement or agreement made under

an Act or regulation of the province or Canada; …

(2) The disclosure of personal information by a public body shall be limited to the minimum amount of information necessary to

accomplish the purpose for which it is disclosed. 40. A use of personal information is consistent under

section 38 or 39 with the purposes for which the information was obtained orcompiled where the use (

a) has a reasonable and direct connection to that purpose; and (

b) is necessary for performing the statutory duties of, or for operating a legally authorized program of, the public body that uses ordiscloses the information. [52] By virtue of s. 39(1)(a), the disclosure of personal information for the purpose of complying with the access to informationprovisions (Parts II and III) falls outside the privacy protections in

Part IV. Further, sections 39(1)(

d) and 40 also support the sameconclusion. If the application of Parts II and III require disclosure, then the public body will be disclosing in compliance with legislationthat contains a statutory duty to disclose. Thus, in deciding whether personal information should be disclosed by a public body inresponse to a request made under

Part II, one is driven back to the question of whether the exemption from the right of access containedin s. 30(1) or the exception to the exemption contained in s. 30(2) in

Part III is operative. In the context of this case, that involves thequestion of whether the Human Resources Officer is an employee of CNA. [53] That said, the scope of the term “employee” must be determined in the context of the legislation as a whole. Recognition must begiven to the fact that the legislation places a value on the protection of personal information from unnecessary disclosure.

That shouldinform the interpretative exercise where the result could involve personal information disclosure. [54] The Act can therefore be said, in the present context, to balance two competing policies: facilitating access to records maintainedby a public body so as to promote openness and accountability while at the same time protecting, to the extent possible, the privacy ofindividuals who have had interactions with that public body where the body’s records record that interaction.

These competing principlesmust be allowed to play out within the structure of the legislation. [55] That structure involves the recognition of a broad right of access to records, even if they contain personal information, with thepublic body having the burden of proving that the applicant for the record has no right of access (s. 64(1)). The competing principle ofprotection of privacy in respect of personal information is expressed as an exemption from the right of access. The exemptions in the Actare described as “limited” exceptions (s. 3(1)(c)).

Nevertheless, the exceptions must be given fair latitude of operation in their individualapplication to ensure that they achieve their policy goals. [56] In Dagg v. Canada (Minister of Finance), (SCC), [1997] 2 S.C.R. 403, a case dealing with the interrelationshipof federal access to information and privacy legislation where access to personal information was being sought, LaForest J. (dissentingbut writing for the majority on this point), stated: [51] … The appellant correctly points out that under the Access to Information Act, access is the general rule.

It is also true thatexceptions to that rule must be confined to those specifically set out in the statute and that the government has the burden of showing thatinformation falls into one of these exceptions. It does not follow, however, that the “personal information” exemption should receive acramped

interpretation… … [55] In

summary, it is clear that the Access to Information Act and Privacy Act have equal status, and that courts must have regard to thepurposes of both statutes in considering whether a government record constitutes "personal information.” … [56] …The Access to Information Act clearly provides that "personal information" is not to be disclosed except in certain specifiedcircumstances.

Of course, the determination of what constitutes "personal information" will involve a balancing of competing values.Such a balancing process, where mandated by legislation, cannot be avoided simply because it might be easier to apply a clear, bright-line rule that favours one interest over another. … [57] … The determination of what constitutes "personal information" is an interpretive exercise; an exercise that will inevitably requirea consideration of the competing values of access and privacy. … [57] Those comments are equally applicable to the interpretative exercise that must be applied in this case.

The Meaning of “Employee” The Words Used [58] The Act does not provide a complete linguistic test for determining who is to be regarded as an employee of a public body. Itmerely says that the term “includes a person retained under a contract to perform services for the public body.” [59] As indicated in paragraph 27 in these reasons, the applications judge focused on the word “includes” and concluded that, by itsuse, the legislature did not restrict the meaning of employee to either (i) “its ordinary or traditional meaning” or (ii) to a person retainedunder a contract to “perform services” for the public body.

He did not state what he believed the ordinary or traditional meaning to be butit is a fair inference that he regarded it as coinciding with the traditional notion of a “contract of service” (as mentioned, for example, byLord Denning in Stevenson Jordan quoted earlier) in contradistinction to his specific reference to the notion of a “contract for services”(which is akin to the terminology used in the Act’s definition).

This distinction has often been used in the case law for differentiatingbetween servant and independent contractor when determining issues of vicarious liability. [60] It appears, therefore, that by stating that “the Legislature purposely drafted the definition … to allow it to be considered incircumstances other than noted in the previous sentence” (the traditional contract of service and the definitional language referring to a

contract for services), the applications judge was concluding that the definition was expansive enough to encompass a wider variety ofwork relationships. [61] CNA submits that the judge adopted an “overly broad”

interpretation of the definition of “employee” that does not coincide withthe plain words of the Act read in their grammatical and ordinary sense. Specifically, CNA takes issue with the effect ascribed by the judge to the use of the word “includes”.

CNA submits that since “include” means to take in or comprise as a part of a whole or group[2],the inclusion in the definition of the reference to “a contract to perform services for the public body” signified simply that the “group”comprising the definition included the ordinary or traditional meaning (contract of service) and the added concept of a contract forservices, but nothing more. It did not, as the judge appeared to conclude, signify a still broader meaning encompassing other workrelationships outside of those two categories. [62] CNA cites National Bank of Greece (Canada) v.

Katsikonouris, (SCC), [1990] 2 S.C.R. 1029 as support for thisinterpretative approach. That case dealt with a very different context (construction of a mortgage insurance clause containing generalwords followed by “including” a list of two specific factual circumstances) that involved the argued application of the ejusdem generismaxim. LaForest J., writing for the majority, rejected the argument that the general words were in some manner cut down by thecharacteristics of the following list.

He observed at p. 1041: … the very language used to introduce the list of omissions and misrepresentations confirms that it would be erroneous to view them asexhaustive. In the English version of the clause, the term “including” precedes the list of examples of omissions and misrepresentations, while the term “notamment” is used in the French text.

I note that the Concise Oxford Dictionary (7th ed. 1982) defines “include” as“comprise or embrace (thing etc.) as part of a whole”, while the Petit Robert 1 (1987) says of “notamment” that it [TRANSLATION] “isgenerally used to draw attention to one of more particular items forming part of a previously designated or implied whole.” This meaning finds confirmation in legal lexicons as well: the entries under “include” and “including” in Stroud’s Judicial Dictionary (5th ed. 1986), totake but one example, again make it clear that these words are terms of extension, designed to enlarge the meaning of preceding words,and not to limit them. (Underlining added.) [63] To the same effect, see Dominion of Canada General Insurance Co. v.

Aviva Canada Inc. 2015 ONSC 6195 where Brown J.agreed with the proposition that the effect of the use of the word “includes” was to “broaden the meaning of the provision to includevehicles which would not otherwise have been caught by the definition” (para. 22). [64] Both of these cases support the proposition that the use of the word “includes” generally results in an extension of an alreadyexisting definition to “include” the added circumstances, but it does not result in a conclusion that the meaning of the word in question isto be expanded beyond the penumbra of the original definition plus the included items. [65] The current case is somewhat different in that there is no general statement in the definition that precedes the words following“includes”.

There is therefore no general core concept described in connection with which the additional concept of “a contract toperform services for the public body” is to be included. The applications judge supplied that omission by ascribing to the legislature anintention at least to include the “ordinary or traditional” notion of employee in the definition.

In the circumstances, that was anappropriate thing to do; otherwise the notion of a combined whole consisting of an original core with which something else was includedwould have been an empty notion. [66] I therefore agree with CNA when they submit that in using the word “includes”, “the Legislature did nothing to suggest the term[employee] was to be construed more broadly than capturing the traditional meaning and ‘a person retained under a contract to performservices for the public body’.” To the extent that the applications judge went beyond this and held that the legislature was not restrictingthe definition to its ordinary or traditional meaning or to a person retained under a contract to perform services, he erred. [67] However, that does not end the matter.

The question still remains what is the scope of the definition, as expanded by theinclusion of the added phrase. By ascribing an intention to the legislature to start with a core definition based on the “ordinary ortraditional” concept of an employee, the judge was in effect applying the presumption that the legislature was basing its definition on thecommon law understandings of what could constitute an employee. I agree with that approach. In doing so, the various common law testsmentioned earlier remain available for potential application.

Their appropriateness would, of course, depend on whether their use wouldbe consistent with the policy purpose underlying the Act. That is something that will be dealt with later in these reasons. [68] At the moment, it is worth noting that the common law tests were mostly developed to draw a distinction between the notions ofa contract of service (i.e. a servant) and a contract for services (i.e. an independent contractor). The former would fall within the conceptof an employee at common law while the latter would not. However, the inclusive definition in s. 2(

e) of the Act also potentially bringswithin the definition the notion of an independent contractor (“a contract to perform services for the public body”). [69] CNA objects to this conclusion because, it says, it would mean that any third party providing services of any nature for CNApursuant to contract would then be regarded as an employee. CNA gave as examples, a lawyer performing legal services for CNA or thedriver of a private bus transporting people to or from CNA would be regarded as an employee.

To this objection, there are two answers.First, such an extended application is not necessarily incorrect if it is justifiable under the policy of promoting a broad right to access toinformation about a public body. Secondly, the policy of the legislation may justify wrapping some independent contractor relationshipswithin the definition but not others. A purposive application of the Act might therefore cut down what appears from the plain words to bean overly-broad concept.

It is not sufficient simply to recoil in horror from a concept because it does not comport with what one’sassumptions about the normal scope of a concept may be. [70] The result of this analysis is that, while the judge should not have reasoned to a conclusion that the definition potentiallyencompassed even more that the ordinary or traditional meaning of an employee together with a person retained under a contract toperform services for a public body, he was justified in concluding from the words used that the definition was intended to be broad, anddid extend beyond traditional understandings of what an employee is.

Context [ 71 ] The context and structure of the Act has already been discussed. It is sufficient to reiterate that the Act recognizes a broad right of access to information about a public body subject to defined exceptions. And even the exemption relating to protection of personal information is itself subject to an exception where the information is about a person’s position or functions as an employee of the public body.

Protection of privacy of personal information is therefore sandwiched between a general right of access and a concern that certain personal information regarding the functioning of employees involved in the operations of a public body also should nevertheless not be protected. [ 72 ] This structure points to the appropriateness of interpreting the Act broadly in a way that will not frustrate the broad right of access that is recognized, so that information about the functioning and operations of the public body is not kept private. [ 73 ] The applications judge recognized that the term “employee” had to be interpreted in the context of the Act as a whole (para. 182).

He did not, however, indicate what contextual features of the legislation were influential in his analysis. [ 74 ] CNA argues that the context favours a more restrictive

interpretation of the words used than that reached by the applications judge. CNA says that the structure of the Act effectively draws a distinction between employment by a public body and a “non-public body”. It is only the former situation which is caught by the access provisions of the Act . That, of course, begs the question as to when a person will be considered an employee of a public body.

CNA’s submission is founded on three argumentative underpinnings: first, that there is a legal separation between CNA (a public body) and CNA-Q (a non-public body); secondly, that the Human Resources Officer was an employee of CNA-Q; and thirdly, that an employment relationship exists only when a worker is hired and paid by the putative employer. For reasons that follow, none of these underpinnings is supportable. [ 75 ] CNA points to various provisions of the Act that include the phrase “of the [or “a”] public body” after the word employee ( ss. 12(1) (c), 33(2) (c), 39(1)(f), 53 (b), 69(2) (

d) and 73 (c)) in a similar manner to the use of the phrase in s. 30(1)(f). CNA submits this indicates that the concept of an employee within the Act is limited to those workers who have an employment contract with a public body, in this case CNA, and not with any other body that does not fit the definition of “public body” in s. 2(p). [ 76 ] This submission does not advance CNA’s case for two reasons. First, it is based on the theory that CNA and CNA-Q are separate legal entities and that the employment of the Human Resources Officer by CNA-Q is not therefore an employment by the public body, CNA.

The testimony of Mr. Hutchings in support of this theory was rejected by the applications judge and does not comport with a reading of the comprehensive agreement governing the relationship between CNA and the State of Qatar, which the judge found to be more persuasive. There is no basis for not showing deference to the judge’s findings on these matters. [ 77 ] Secondly, CNA’s submission assumes the very point in issue. It is based on acceptance of the notion that an employment relationship is simply determined by focussing on the person with whom the putative employee has a contract.

But that is the question in issue. The reality is that the status of employee depends potentially on a variety of factors and tests chosen to advance the policy behind the legal principles that are being applied. If those tests lead to a determination that the worker is, for the purpose of the litigation, an employee, then he or she will be regarded as an employee regardless of any assumption that may have initially arisen solely from the existence of a certain contractual relationship.

Stated another way, a worker hired and paid by a non-public body could, for certain purposes under traditional or common law tests, be considered to be an employee of another, public, body. Further, the worker could also be considered an employee if he or she falls within the included notion in s. 2(

e) of a person retained under a contract to perform services for a public body.

It is to be noted that the definition of “employee” does not include words that stipulate that the worker be retained under a contract “with a public body”, only that pursuant to that contract (whomever it may be with) the services are performed “for” that body. [ 78 ] As a variant of the foregoing argument, CNA also submitted that, as the Act was directed at promoting accountability for the expenditure of public funds, where public funds were not involved in the payment for a worker’s services (i.e. where they are paid by a non-public body) then the recipient of those non-public funds should not be regarded as an employee of the public body.

In such a case, it was argued, the purposes of the Act would not be advanced. The answer to this submission is that the Act is not in any way limited to promoting accountability of expenditure of public funds but is directed, by its language, to the much wider purpose of accountability generally for the overall functioning of public bodies in the public interest. It covers such things as accountability for decision-making and for operation and management. There is nothing in the context of the Act that limits its operation to financial accountability.

This notion cannot be relied on, therefore, as a basis for providing an artificial restriction on the meaning of the word “employee”. [ 79 ] CNA also submits that the opening phrase in the definition of “employee” in s. 2(e) (“in relation to a public body”) suggests that the concept of employee under the Act must be limited to persons who are employed (in the sense of working under a contract with the public body) by a public body. This is an argument that reaches too far.

This phrase simply directs the reader to apply the definition to circumstances whenever it becomes necessary to determine whether a particular worker is an employee.

Furthermore, for the reasons given in the previous paragraphs, CNA’s argument assumes the point in issue. [ 80 ] I conclude that there is nothing in the context of the legislation which has been submitted in argument that leads to the conclusion that the only relationship that qualifies under the Act as an employment relationship is one that depends solely on who hired the worker and paid his or her salary, or on whether an expenditure of public funds was involved. Purpose [ 81 ] The Act states its purposes as follows: 3

(1) The purposes of this Act are to make public bodies more accountable to the public and to protect personal privacy by (

a) giving the public a right of access to records; (

b) giving individuals a right of access to, and a right to request correction of, personal information about themselves;

(

c) specifying limited exceptions to the right of access; (

d) preventing the unauthorized collection, use or disclosure of personal information by public bodies; and (

e) providing an independent review of decisions made by public bodies under this Act. [ 82 ] The opening words of s. 3 stress the two competing interests of the legislation which have been mentioned earlier in these reasons. In applying the Act , there is a balancing act to be performed. For present purposes, paragraphs (

b) and (

e) are not relevant. The other three paragraphs, however, are reflections of the tension that exists between ensuring public accountability and protection of personal privacy. A review of the language helps in determining how the tension is to be resolved in cases such as the present. [ 83 ] Paragraph (

a) speaks in terms of the public having a right of access to records, which includes records of information in any form and stored in any manner except if stored via a computer storage program or medium (s. 2(q)). It is broad and unqualified. It supports a broad reading of s. 7 , quoted earlier, which recognizes the general right of access. Paragraphs (

c) and (

d) address the countervailing policy, protection of privacy. These protections are expressed in paragraph (

c) as “limited exceptions” to the right of access. Paragraph (

d) specifically singles out and addresses the important exception relating to personal information. In this area, the purpose of the Act is to prevent, amongst other things, disclosure of certain types of personal information by public bodies. But, the protection is only for “unauthorized” disclosure. [ 84 ] This purpose is reflected in s.30 .

Subsection 30 (1) places a general duty on the head of a public body to refuse to disclose personal information but subsection (2) states that the general duty does not apply in a number of situations, one of which is paragraph (f), as previously quoted, which exempts information about a third party’s “position, function or remuneration as an officer, employee of member of a public body.” Thus, the disclosure of personal information about an employee’s position, function or remuneration is statutorily authorized and does not offend the stated purpose in paragraph 3(1)(

d) of the Act about protecting against “unauthorized” disclosure of personal information. [ 85 ] There is thus an emphasis on promoting accountability of public bodies but with an eye to protecting privacy of personal information in the process.

However, where a choice has to be made between making disclosure of records containing personal information to promote public accountability and protecting privacy of those records, the scales tip in favour of making disclosure provided the personal information relates to the “position, function or remuneration” of an officer, employee or member of the public body concerned. That is because the officer, employee or member’s position and function in that circumstance of necessity relates to the institutional operation of the public body.

To allow that information to remain in the shadows would result in a less than transparent image of the public body as a whole to be presented, thus working against the principle of accountability. [ 86 ] CNA described the balance between accountability and preserving privacy slightly differently. In its factum, it submitted: “ Employees of the College are accountable to the public they serve, which accountability is balanced against the protection of their personal privacy” (Factum, para. 57; emphasis added).

It is not correct to assert that the Act makes individual “employees” accountable to the public they serve. Section 3(1) states that the purpose of the Act is to make “public bodies” more accountable. Placing emphasis on the public body as a whole enables the scope of the legislation to be brought into clearer focus.

It is true that an institution like a public body is effectively a collectivity of officers and employees, but the purpose of the access rights is not to allow general prying into the personal life of those officers and employees but only insofar as doing so facilitates the disclosure of information that throws light on the operation and functioning of the institution itself. Operation and functioning in the full light of public scrutiny is what promotes accountability.

To the extent persons are therefore involved in the operation and functioning of a public body as an institution, disclosure of personal information involving them that relates to that operation and functioning will be a necessary by-product of ensuring accountability. [ 87 ] This analysis is supported by the language of s. 30(2)(

f) itself, which includes within the umbrella of disclosure personal information that relates to “position” and “functions” of a person as an officer or employee of the public body.

His or her role as a cog in the organizational structure of the public body is therefore not protected from disclosure, even if that involves disclosing some personal information. [ 88 ] It would not be inconsistent with the purpose of the legislation, therefore, to include within the concept of employee, persons performing services for the public body, regardless of with whom their formal contract may be, if those persons, in the performance of their functions, are regarded as part of the institutional structure of the public body with regard to the services they perform in carrying out the mandate of the public body.

Reconciliation of All Sources of Meaning [ 89 ] The foregoing analysis helps in ascribing a proper scope of meaning to the definition of “employee” for the purposes of this case. [ 90 ] The language of the definition together with the “ordinary or traditional” concept of employee, encompasses both what would be traditionally described as a servant and an independent contractor. [ 91 ] The statutory context and the purpose of the Act , however, would appear to limit including independent contractors only to those who, by virtue of their contract, are required to perform services for the public body in a manner that involves them as a functional cog in the institutional structure of the organization.

It is those persons whose personal information about position and functions which can be regarded as employees and still promote the purpose and object of the legislation. To restrict the definition further would be to shield information about certain aspects of the public body’s operations and functioning from potential public scrutiny. To expand the definition further would equally not promote the object and purpose of the Act because it would allow for disclosure of personal information that does not elucidate the institutional functioning of the public body which is to be held accountable.

[ 92 ] Earlier in these reasons, I referred to the applications judge’s comment that an individual who was part of the “institutional structure” of the body and who performed a service that assisted the body to carry out its mandate could be an employee for the limited purpose of the Act . I also observed that this comment was reminiscent of the “organization test”. That was one of the traditional tests at common law for determining who was an employee. This organization test in fact fits the foregoing discussion well.

Although the judge did not expressly say he was applying that particular test as the sole basis for his ruling, its application is completely consonant with my analysis of the legislation. [ 93 ] There is therefore no merit in the submissions of CNA as to the meaning of “employee” under s. 2(

e) and s. 30(2)(

f) of the Act. Further, interpreting the judge’s reference to the organization test as influencing his ruling, I conclude that he did not err in applying s. 2(

e) too broadly. What did the Judge Decide? [ 94 ] The duty of a judge is to decide the questions of fact or law that are necessary to be decided to enable a ruling to be made on the issues that are presented. A failure to do so amounts to an error of law. [ 95 ] In this case, CNA submits that the judge failed in this duty by failing to make a finding of fact as to whether the Human Resources Officer was an employee of CNA even though presented with uncontradicted evidence from Mr.

Hutchings that the person occupying the position of Human Resources Officer “is not at present and never has been an employee of CNA.” Mr. Hutchings further stated that “No contract exists between CNA and the individual.” [ 96 ] There is no merit in this submission for a number of reasons. [ 97 ] First, Mr. Hutchings’ assertion that the Human Resources Officer was not an employee of CNA is an opinion on the ultimate issue in the case. His view is not controlling.

The conclusion was for the judge to make after hearing the evidence and applying the law. [ 98 ] Secondly, the determination of whether a person is an employee is determined by examination of a variety of factors and choosing among, and then applying, one or a number of tests. It is not determined, as CNA submits, solely by where the formal contractual relationship exists or whether public funds are being expended. [ 99 ] Thirdly, and most importantly, the judge did decide the ultimate question.

He stated: [187] … I, therefore, find that in the circumstances of this matter, the individual in question is an employee of [CNA] within the meaning of that term in para. 2(

e) of the Act. [ 100 ] It is true that he did not definitively articulate the test to be applied. But it is clear, by virtue of his finding that the Human Resources Officer was an employee of CNA, that he must have adopted a concept that was broader than that advocated by CNA. In any event, he rejected the submission of CNA, supported by the evidence of Mr. Hutchings, that CNA and CNA-Q were separate legal entities.

This effectively undercut CNA’s theory that because the Human Resources Officer was not a “Canadian hire” and was somehow engaged as a “local hire” by CNA-Q he or she could not be an employee of CNA because the “contract” was with a different entity. [ 101 ] The judge’s conclusion can be supported by the application of an “organization” or “institutional integration” test.

The judge alluded to its relevance when he referred to the situation as being within the scope of the meaning of “employee” where an individual was working as [187] … part of an institutional structure (the College) and was performing a service that assisted the College to carry out its mandate… [ 102 ] This is a traditional test that has been utilized at times under the common law to determine whether a particular worker is an employee as opposed to an independent contractor. In applying the traditional test, it is not necessary to stray beyond the inclusive definition of “employee” in s. 2(

e) that has been discussed earlier, even though the judge, by his discussion of the word “includes” in the definition, appears (wrongly) to have contemplated going even further, if necessary. In this case, it was not necessary to do so. [ 103 ] The function of signing an authorization for vacation pay for an officer of CNA working at the Qatar campus is clearly part of the normal day to day financial functioning of college operation which CNA was, by virtue of the comprehensive agreement, responsible for performing.

The persons who sign the authorization are part of the institutional functioning of the organization. If, as here, three persons are required to sign off, then, in the absence of evidence to the contrary, the three are equally integrated into the college’s operations and are performing services “for” CNA.

As noted earlier, the definition in s. 2(e), which includes “a person retained under a contract to perform services for the public body” does not expressly require that the contract be with the public body in any event. [ 104 ] Accountability for the proper performance of this function depends in part on the public availability of information surrounding the carrying out of the function. Knowing who purported to perform the function could be important in determining whether the function was properly performed by persons properly authorized.

It is a check against nepotism and encourages responsible and accountable procurement and expenditure of monies being administered by a public body. It is information that relates to the person’s position or function within the personal information disclosure authorization in s. 30(2)(f). [ 105 ] The evidence given by Mr. Hutchings on cross-examination supports the idea that the Human Resources Officer, in performing the function of vacation pay authorization, was integrated into the operations of the college which was being managed and operated by CNA.

Q. … in order for the document to be completed, it needed to be approved by somebody. You needed the HR officer’s signature, you need a payroll officer’s signature, and the signature of an employee. Was that fair to say? A. Yes.

Q. And when you have all that completed, you have a complete form? A. Yes. Q. So without the assistance or the service of the HR officer, Ms. Strickland wouldn’t have been able to get her annual leave payout? A. Without somebody’s. In this case, it was a HR Officer but anybody could fill it out. Q. Okay. Yeah, but in this case it was a HR officer? A. Yeah. Q. So would it be fair to say that this HR Officer was performing a service for the College of the North Atlantic to assist Ms. Stickland? A.

Yes, they were. (Emphasis added.) [ 106 ] The evidence was that the Human Resources Officer was performing a service for CNA, the public body. It was a service that CNA was responsible for performing under

article 2.1.10 of the comprehensive agreement: “recruiting, employing, and managing all administrative personnel, faculty, and staff for the College [“a branch campus of CNA”]” [emphasis added.]. The signing of vacation pay authorizations was therefore integrally part of the management functions of CNA. [ 107 ] The use of the organization test is consistent with and advances the purpose of the Act, for the reasons given earlier. It provides the nexus between the worker and the public body. Its application to the facts of this case provides a justification for the result reached by the applications judge without offending the purpose of the legislation.

Summary and Conclusion [ 108 ] I would dismiss the appeal. [ 109 ] While the applications judge erred in his description of the scope of potential application of the definition of “employee” in s. 2(e), a proper

interpretation of the definition, based on the words used, the statutory context and the purpose of the Act, when applied to the facts accepted by the judge, justifies the conclusion reached by him, namely, that the Human Resources Officer was an employee of the Appellant for the purpose of the Act and that the Appellant is required to provide the First Respondent with access to the part of the record that was previously redacted. [ 110 ] The applications judge made no order as to costs on the original hearing.

Although not participating on the appeal, the First Respondent, Peter McBreairty, did appear and participate in the court below and was successful. I would have been inclined to award him costs. However, recognizing that the awarding of costs is a discretionary decision which deserves deference on appeal, I would not be prepared at this stage to interfere with the judge’s decision. [ 111 ] As to costs on the appeal, both CNA and the Information and Privacy Commissioner agreed that each party should bear its own costs. I would so order. Appeal dismissed.