2021 NLCA 56, 2021 NLCA 56

Anton Oleynik (appellant) v. Memorial University of Newfoundland (respondent) and Michael Harvey in his capacity as the Information and Privacy Commissioner of Newfoundland and Labrador (21/06, 21/27 and 21/47) Oleynik v. Memorial University of Newfoundland 2021 NLCA 56 7 C.A.N.L.R. 139 Court of Appeal of Newfoundland and Labrador Welsh, Hoegg and Goodridge JJ.A. December 1, 2021

Summary: Mr. Oleynik appealed four interlocutory orders arising from proceedings initiated against Memorial University under the Access to Information and Protection of Privacy Act, 2015 , SNL 2015, c. A-1.2 . He had filed several access requests with Memorial for information to assist with a pending grievance in which he challenged the outcome of a respectful workplace complaint. Mr. Oleynik was not satisfied with Memorial’s responses to those requests and commenced the proceedings under which the four interlocutory orders were issued. Held: Appeals dismissed. Application to introduce fresh evidence dismissed.

Goodridge J.A. (Welsh and Hoegg JJ.A. concurring): The applications judge made no errors in applying the proportionality principle, or in the exercise of his discretion, in issuing these four interlocutory orders, including: (1) order denying the request that Memorial reply to interrogatories; (2) order denying the request to cross-examine on affidavits filed by Memorial; (3) order partially denying the request to eliminate redactions of personal information on disclosed information; (4) order denying admissibility of an expert opinion report.

Discretionary orders made in interlocutory proceedings are accorded deference unless the discretion is exercised beyond jurisdiction, contrary to principle, on the basis of palpable and overriding error in appreciation of the facts, or will otherwise result in a manifest injustice. In the context of this matter, the orders were accorded deference. Cases cited: Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLCA 40 Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLSC 4 Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLSC 31 Oleynik v.

Memorial University of Newfoundland and Labrador , 2021 NLSC 99 ___________________________________

Leave to appeal to SCC refused, [2022] S.C.C.A. No. 42, 40033 (June 2, 2022) R. v. Palmer, (SCC), [1980] 1 S.C.R. 759 Szeto v. Dwyer, 2010 NLCA 36, 297 Nfld. & P.E.I.R. 311 British Columbia (Attorney General) v. Provincial Court Judges' Association of British Columbia, 2020 SCC 20 Coast to Coast Contractors Inc. v. Millbrook Development Company Inc., 2017 NLCA 47, 2 C.A.N.L.R. 131 Tucker v. AXA General Insurance, 2014 NLCA 36, 355 Nfld. & P.E.I.R. 354 Excell Agent Service Canada Co. v.

International Union of Operating Engineers, Local No. 882, 2003 CarswellBC 2994, 96 C.L.R.B.R.(2d) 161 (BC LRB) Newfoundland and Labrador v. Newfoundland and Labrador Teachers’ Association, 2018 NLCA 54, 3 C.A.N.L.R. 360 White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 Compton v. Toyota Canada Inc., 2019 NLCA 79 Taylor v. Mallany, 2019 NLCA 25, 4 C.A.N.L.R. 361 Yukon Francophone School Board, Education Area # 23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282 Statutes considered: Access to Information and Protection of Privacy Act, 2015, SNL 2015, c.

A-1.2, sections 52, 40, 2(u), 33 Rules considered: Court of Appeal Rules, NLR 38/16, section 37(3)(

c) Rules of the Supreme Court, 1986, sections 49.03(1), 31 Counsel: Anton Oleynik appearing on his own behalf; Koren A. Thomson and Stephen Penney, for the respondent; Andrew A. Fitzgerald, for the intervenor. The appeal was heard on October 14, 2021 before Welsh, Hoegg and Goodridge JJ.A.

The following judgment was filed on December 1, 2021 by Goodridge J.A. for the Court. ______________________________________________________________ Goodridge J.A.: [1] Anton Oleynik appeals four interlocutory decisions of the Supreme Court, General Division, each of which engages the Accessto Information and Protection of Privacy Act, 2015, SNL 2015, c. A-1.2 (ATIPPA). The appeals were consolidated and heard together(consolidation decision at 2021 NLCA 40). BACKGROUND [2] The appeals are part of a complex mix of interrelated court proceedings initiated by Mr.

Oleynik, against his employer,Memorial University of Newfoundland. There are currently more than a dozen such proceedings, most of which were filed by Mr.Oleynik in the context of an employment grievance with Memorial. The grievance relates back to a respectful workplace complaintlodged against Mr. Oleynik on October 18, 2018 and subsequent discipline imposed against him on January 28, 2019.

[3] Mr. Oleynik filed several ATIPPA requests for access to records of Memorial pertaining to the complaint and its investigation.Mr. Oleynik was not satisfied with Memorial’s response to his ATIPPA requests, so he made an access complaint to the Information andPrivacy Commissioner (the “Commissioner”). The Commissioner investigated and issued a report on August 15, 2019 (“Commissioner’sReport”) recommending that Memorial release certain of the requested records. Memorial responded but Mr.

Oleynik was still notsatisfied and commenced the Originating Application and Appeals from which the interlocutory decisions now under appeal flowed. Thefour interlocutory decisions deal with procedural and evidentiary matters on uncompleted matters that continue to be case managed inthe Supreme Court, General Division. GROUNDS OF APPEAL [4] Mr. Oleynik made general allegations that the applications judge erred in these interlocutory decisions: (

i) January 8, 2021 (2021 NLSC 4) dismissal of Mr. Oleynik’s application to force Memorial to reply to interrogatories – the“Interrogatories Decision”; (ii) March 9, 2021 (2021 NLSC 31) dismissal of Mr. Oleynik’s application for leave to cross-examine persons who deposed affidavitson behalf of Memorial – the “Cross-Examination Decision”; (iii) April 14, 2021 (2021 NLSC 52) dismissal of Mr. Oleynik’s application to remove redactions made by Memorial on some records– the “Redaction Decision”; and (iv) July 15, 2021 (2021 NLSC 99) dismissal of Mr.

Oleynik’s application for admission into evidence of expert reports dealing withheaders and metadata on electronic reproductions of emails – the “Expert Decision”. [5] In addition to general allegations of error, Mr. Oleynik made the following specific allegations of error: (

v) Applications judge denied Mr. Oleynik procedural fairness by applying a lower level of due process for him as a self-representedparty; (vi) Applications judge conducted the hearings in a manner that gave rise to a reasonable apprehension of bias; and (vii) Applications judge erred by referring to prior reported court decisions involving Mr. Oleynik, without affording Mr. Oleynik anopportunity to address those decisions. FRESH EVIDENCE [6] Mr. Oleynik’s factum included an application to introduce 22 items of fresh evidence for consideration on these appeals. Inaddition, there were affidavits affirmed by Mr.

Oleynik included in his appeal book, which included fresh evidence. [7] I would dismiss the application to introduce fresh evidence. In addition, the fresh evidence within the affidavits will not beconsidered on these appeals. The only exception is the court order (sealing order) in matter 2020 01G 58. That can be considered as partof the court documents included within the Appeal Book. [8] The four part test set out in R. v. Palmer, (SCC), [1980] 1 S.C.R. 759 (S.C.C.), at 775, governs the admissibilityof fresh evidence on appeal. That test has been codified in rule 37(3)(

c) of the Court of Appeal Rules, NLR 38/16: In determining the application [for fresh evidence], the Court shall consider (

a) whether, by due diligence, the evidence could have been brought in the court appealed from; (

b) the relevance of the evidence in the sense that it bears upon a decisive or potentially decisive issue in the appeal; (

c) the credibility of the evidence; (

d) whether the evidence, if believed, could reasonably have affected the result; and (

e) any other relevant factor. [9] As stated above, Mr. Oleynik seeks to introduce 22 items of fresh evidence for consideration on these appeals. [10] There are 12 items of correspondence, mostly emails, generated between May 2020 and July 2021. Mr. Oleynik is the sender, orrecipient, or copied party. The correspondence includes exchanges among Mr. Oleynik, the lawyers, the lawyers’ administrative staff,and the Supreme Court, General Division administrative staff.

The correspondence is administrative, addressing such matters ascoordination of hearing dates, resolving costs issues, agreeing on form of draft orders, attempting to identify or narrow issues, andattaching affidavits. The correspondence is irrelevant because it does not bear upon a decisive or potentially decisive issue in the appeals. [11] There are three items of correspondence generated between January 12, 2021 and April 23, 2021. The first chronologically is aletter from Memorial to Mr.

Oleynik terminating his employment, the second is his grievance respecting the termination, and the third ishis request to hold the grievance in abeyance. This correspondence is also irrelevant because it does not bear upon a decisive orpotentially decisive issue in the appeals. [12] There are three draft orders and one final order with associated correspondence. The draft orders and associated correspondenceare irrelevant; however, the final order, a sealing order for part of the record in matter 2019 01G 5833, is accepted as part of the AppealBook.

[ 13 ] There is a sample email, part of Memorial’s response to an ATIPPA request, without an internet header. That is documentary evidence that could have been brought in the court appealed from. It was either not entered or found inadmissible in that court. It is not relevant in any case because Memorial acknowledges that the internet headers were not included on some of the emails reproduced. [ 14 ] There are two items relating to Memorial’s response to ATIPPA access requests 015-01-70-21 and 015-01-52-19, but there is no cross-reference to locate these two items within the five volumes of the Appeal Book.

There were no submissions, either written or oral, to explain the relevance of these two items. In addition, there are no references to access requests 015-01-70-21 and 015-01-52-19 in the judicial review or appeals that were before the court below, except a passing mention in an affidavit noting that emails produced in response were in native format. In these circumstances, Mr. Oleynik has failed to establish any relevance for these two items. [ 15 ] There is one item relating to inquiry procedures for the Privacy Commissioner of Alberta.

That item is irr elevant because it does not bear upon a decisive or potentially decisive issue in the appeals . [ 16 ] The affidavits that were before the applications judge will be considered. Any fresh evidence contained within the subsequent affidavits, affirmed by Mr. Oleynik and filed with his appeal materials, will not be considered. [ 17 ] In the result, I would dismiss Mr. Oleynik’s application to introduce fresh evidence for consideration on these appeals. The sealing order for part of the record in matter 2019 01G 5833 is not fresh evidence, and it can be included in the Appeal Book. ANALYSIS (

i) Interrogatories Decision ( 2021 NLSC 4 ) [ 18 ] The interrogatories decision was the result of Mr. Oleynik’s interlocutory application in a proceeding that began by way of an Originating Application (2019 01G 5833) for judicial review, and mandamus . A judicial review is similar to an appeal, in the sense that the applicant is challenging the legal validity of action taken by an administrative body – Memorial in this case. Mr.

Oleynik claimed that Memorial had failed to adequately respond to an access to information request, and in particular, failed to adequately respond to the recommendations made in the Commissioner’s Report. He sought an order in the nature of mandamus , compelling Memorial to fully respond to the Commissioner’s Report. Memorial maintained that it had fully responded. [ 19 ] In advance of the judicial review hearing, Mr.

Oleynik brought an interlocutory application to conduct written interrogatories of officers or agents of Memorial (including its counsel) and to conduct written interrogatories of the Commissioner’s counsel. [ 20 ] The applications judge dismissed the interlocutory application on the basis that a judicial review is generally limited to the evidence that was before the decision-maker, and supplementing the record through interrogatories was not appropriate in this specific context.

In addition, the applications judge found that the i nterrogatories were not material to resolving the merits of the judicial review and contrary to the principle of proportionality. The judge stated: [32] Interrogatories or other discovery procedures are not normally permitted on a judicial review application. Judicial review proceedings are, with limited exceptions, confined to the record ...

The problem in this proceeding is that no record has been filed. … … [34] … Oleynik is not entitled to turn the judicial review application into a trial de novo on the merits of the issues before the Commissioner … … [38] I find the Oleynik's Interrogatories extend well beyond the scope of what is required to decide upon the application for judicial review. … It would pose an unnecessary burden and expense on Memorial to answer the Interrogatories, and more importantly, I am not satisfied the answers are material to resolving the merits of the judicial review. [39] I hasten to add if in the determination of Oleynik's judicial review application I come to the realization that material and relevant matters are not before the Court to allow the application to be disposed of fairly, I have ultimate control of the proceedings to make any production or procedural orders necessary for proper disposition. … [58] I have concluded the Interrogatories are unnecessary and contrary to the principle of proportionality to allow for a proper and just determination of Oleynik's judicial review application. … (Citations omitted.) [ 21 ] The interrogatories decision, made under rule 31 of the Rules of the Supreme Court, 1986, SNL 1986, c. 42,

Schedule D , is a discretionary one made in an interlocutory proceeding. The exercise of that discretion by the applications judge is accorded deference unless it was exercised beyond jurisdiction, contrary to principle, on the basis of palpable and overriding error in appreciation of the facts, or will otherwise result in a manifest injustice ( Szeto v. Dwyer , 2010 NLCA 36 , 297 Nfld. & P.E.I.R. 311 , at para. 25 ). [ 22 ] Mr.

Oleynik argues that it was contrary to principle for the judge to state that judicial review proceedings are, with limited exceptions, confined to the existing record, i.e. based on the evidence that was before the decision-maker. In British Columbia (Attorney General) v. Provincial Court Judges' Association of British Columbia , 2020 SCC 20 , Karakatsanis J., for a unanimous Court, recognized and accepted that principle: [52] In the usual context of judicial review, the record generally consists of the evidence that was before the decision-maker …

[ 23 ] The applications judge did not misstate the principle, and he properly applied it in exercising his discretion to dismiss Mr. Oleynik’s application to conduct written interrogatories. The judge exercised his discretion within jurisdiction, and consistent with the principle. He has not been shown to have otherwise erred. The dismissal of the application will not result in a manifest injustice. On this last point, the judge preserved the option to make a production order to supplement the record “[if] I come to the realization that material and relevant matters are not before the Court” (para. 39).

In this way, the risk of any manifest injustice was eliminated. [ 24 ] Mr. Oleynik also argued that the applications judge misapplied the principle of proportionality in dismissing his application. I would reject that argument. [ 25 ] Proportionality is a factor when interpreting and applying rules involving discretion.

In Szeto , this Court stated that rules governing disclosure must be interpreted and applied in the context of the underlying principle of proportionality: [53] For rules involving discretion, in this case the rules regarding pre-trial discovery and disclosure, this includes application of an underlying principle of proportionality which means taking account of the appropriateness of the procedure, its cost and impact on the litigation, and its timeliness, given the nature and complexity of the litigation. [ 26 ] The applications judge correctly considered and applied the principle of proportionality and reasonably concluded that the burden and cost for Memorial to answer the interrogatories was disproportionate, considering the lack of materiality of the answers being sought through interrogatories (para. 38). [ 27 ] There was no error by the applications judge in dismissing Mr.

Oleynik’s application to conduct written interrogatories. [ 28 ] The applications judge awarded costs to Memorial and the Commissioner, payable by Mr. Oleynik. Although the Commissioner intervened on terms that included an agreement not to seek costs, that does not preclude the judge from awarding costs. Costs awards, respecting any party, are in the discretion of the court. Mr. Oleynik was seeking to conduct interrogatories of the Commissioner’s legal counsel. The judge was justified in awarding costs in the circumstances. In awarding costs, the judge observed that Mr.

Oleynik’s attempt to compel counsel to answer interrogatories was unreasonable, and required some measure of rebuke. He noted, “There is no justification whatsoever for granting leave to Oleynik to pose interrogatories to counsel for the Commissioner” (para. 44). [ 29 ] In Coast to Coast Contractors Inc. v. Millbrook Development Company Inc . , 2017 NLCA 47 , 2 C.A.N.L.R. 131 , at para. 26 , White J.A., for a unanimous Court, noted “costs awards are discretionary and should only be interfered with if the trial judge made an error in principle or was clearly wrong”.

In this matter the applications judge had discretion to award costs to the Commissioner and made no error in awarding those costs. (ii) Cross-Examination Decision ( 2021 NLSC 31 ) [ 30 ] The cross-examination decision was an interlocutory order made in a proceeding that began by way of statutory appeal (2020 01G 1408) to the General Division pursuant to s. 52 of ATIPPA . In that statutory appeal, Mr.

Oleynik challenged the decision of Memorial to withhold records (redactions had been made to protect personal information) and for failing to release emails in native format. [ 31 ] In the course of the statutory appeal, Mr. Oleynik sought leave to cross-examine two affiants of Memorial, Rosemary Thorne, who had responded to his ATIPPA request, and Kimberly Burridge, who had investigated the complaint against Mr. Oleynik. The judge refused leave because the areas that Mr. Oleynik sought to cross-examine did not relate to the matters that the judge was required to decide.

This refusal to permit cross-examination was a discretionary decision made in an interlocutory proceeding. The judge’s exercise of that discretion, in this context, is entitled to deference. The context includes the proposed areas identified by Mr. Oleynik for cross- examination, namely: • scope of Ms. Thorne’s authority; • completeness of Ms.

Burridge's file; and • redactions made from the email thread. [ 32 ] The proposed areas of cross-examination had no relevance to the issues raised in the appeal, and could not assist the judge in assessing whether the redactions on the records were properly made by Memorial under ATIPPA , or whether digital records (emails) should be released in their native format. The applications judge already had all the records, in an unredacted format, and that was the most relevant evidence for assessing whether the ATIPPA exclusions from disclosure applied to justify the redactions. [ 33 ] In Tucker v.

AXA General Insurance , 2014 NLCA 36 , 355 Nfld. & P.E.I.R. 354 , this Court considered a request for leave to cross-examine an affiant in the context of an application for reinstatement of a notice of appeal. Leave was denied on the basis that the areas of proposed cross-examination had no relevance to the issue that the Court had to decide: [32] Accordingly, I can see no basis for how cross-examination on the affidavit could have benefitted the Court in deciding the merits of the applications … [ 34 ] The same reasoning applies here. Accordingly, there was no error made by the judge in refusing to grant Mr.

Oleynik leave to cross-examine. (iii) Redaction Decision ( 2021 NLSC 52 ) [ 35 ] The redaction decision was an interlocutory order made in the same statutory appeal as the cross-examination decision. Memorial had responded to an ATIPPA request from Mr. Oleynik, but redactions had been made in reliance on the exception to disclosure for personal information, as set out in s. 40(1) of ATIPPA :

The head of a public body shall refuse to disclose personal information to an applicant where the disclosure would be an unreasonable invasion of a third party's personal privacy. [ 36 ] Mr. Oleynik applied for an order granting him access to the records without redactions. The applications judge allowed access to the records (removal of redactions) for the personal information of Mr. Oleynik, but not to the other redactions because he found them to have been properly made pursuant to s. 40(1) .

The judge was satisfied that these other redactions related to personal information of third parties, disclosure of which would constitute an unreasonable invasion of privacy. In his reasons the judge found that Mr. Oleynik had no right of access to the other redacted information: [45] I conclude that the redacted information in Email A and Email B is "personal information" about Oleynik. Memorial is to give Oleynik access to such Emails without the redactions on the terms and conditions specified in my Order above at paragraph 40. [46] Oleynik has no right of access to the Other Redacted Information under either

section 40 or section 33(3) of the Act . [ 37 ] Mr. Oleynik says the applications judge erred in not granting him access to the other redacted information. In particular, Mr. Oleynik argues that the judge erred in his

interpretation and application of various provisions of ATIPPA , such as the s. 2 (

u) definition of personal information. [ 38 ] The applications judge had access to all the records without redactions, as did this Court. Having reviewed the other redacted information, I am satisfied that the judge below made no error in determining that the redactions were personal information of a third party, and properly withheld under s. 40(1). [ 39 ] Mr. Oleynik submitted that the other redacted information contained his name and information pertaining to his employment status, and should not have been withheld under s. 40(1). That is speculation on Mr.

Oleynik’s part; he has not seen the other redacted information. [ 40 ] In his factum, Mr. Oleynik relies on extracts at pages 59 to 61 of the March 5, 2021 transcript to support his claim that the other redacted information contained his name and information pertaining to his employment. There is nothing within those extracts of the transcript to support that position. In fact, those extracts from the transcript imply the opposite, with representations made by counsel that the redactions were not about Mr. Oleynik. [ 41 ]

Section 40 imposes an obligation on Memorial to withhold – “shall refuse to disclose” – personal information where the disclosure would be an unreasonable invasion of a third party's personal privacy. Personal information is defined in s. 2(

u) of ATIPPA and includes, among other things, the opinions of a person about an identifiable individual, and the individual's personal views or opinions, except where they are about someone else. The judge interpreted ‘views’ to include “ideas, thoughts, beliefs, judgment and opinions” but exclude “acts taken in furtherance of those views” (para. 30). That is a reasonable

interpretation; it is consistent with dictionary

definitions; it is consistent with

interpretation applied in Excell Agent Service Canada Co. v. International Union of Operating Engineers, Local No. 882 , 2003 CarswellBC 2994 , 96 C.L.R.B.R. (2d) 161 (BC LRB) .

The judge then applied the definition of personal information to the redacted records; he considered whose personal information was in issue; he considered s. 40(2) which identifies situations where disclosure of personal information is not an unreasonable invasion of a third party's personal privacy; and he considered s. 40(4) which identifies situations where disclosure of personal information is presumed to be an unreasonable invasion of a third party's personal privacy. [ 42 ] The relevant part of s. 40(4) states: A disclosure of personal information is presumed to be an unreasonable invasion of a third party's personal privacy where … (

g) the personal information consists of the third party's name where, (

i) it appears with other personal information about the third party … [ 43 ] The redactions did involve personal information and the third party’s name, and were therefore caught by s. 40(4). That resulted in a rebuttable presumption that disclosure would create an unreasonable invasion of a third party’s privacy. The judge then considered s. 40(5), which lists factors that might rebut the presumption. None applied. In his reasons the applications judge stated: [32] … The information falls within 40(4)(g)(

i) as it contains personal information in conjunction with the [third party’s] … name. As such, there is a presumption that its disclosure would constitute an unreasonable invasion of third-party privacy. [33] I now turn to whether the presumption can be rebutted when considering the factors and "all the relevant circumstances" in section 40(5) .

Disclosure of this information is not going to further public scrutiny of Memorial: 40(5)(a); nor will it facilitate democracy in other ways as is the primary purpose of the Act : section 3(1)(c). [34] This is not information that is relevant to a fair determination of Oleynik's rights at this stage: 40(5)(c). If the [third party] follows through in processing of the information and acts upon [his/her] thoughts and views, then Mr.

Oleynik's right of access may subsequently be engaged. [35] It is reasonable in the current circumstances to infer that disclosure of the information would make the [third party] feel exposed unfairly to harm: 40(5)(e); and would reveal information that was supplied in confidence: 40(5)(f). [36] Memorial has met the burden under 59(2) in establishing Oleynik has no right of access to the Other Redacted Information under

section 40 . [ 44 ] The above reasoning and approach applied by the applications judge in interpreting and applying ATIPPA is consistent with that discussed by White J.A., writing for the majority, in Newfoundland and Labrador v. Newfoundland and Labrador Teachers’ Association ,

2018 NLCA 54 , 3 C.A.N.L.R. 360 , at paras. 7-11 . [ 45 ] The applications judge also considered ss. 33(2) and (3) of ATIPPA , to assess whether disclosure could be justified under the workplace investigation exceptions. Those subsections state:

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

(3) The head of a public body shall disclose to an applicant who is a party to a workplace investigation the information referred to in subsection (2). [ 46 ] The applications judge found that the other redacted information was not relevant, and that the workplace investigation exceptions under s. 33 were not applicable: [37] … As for the Other Redacted Information, I am satisfied Memorial has established on a balance of probabilities that the Information is not relevant to the workplace investigation. [38] …The Other Redacted Information was neither created nor gathered for the workplace investigation, and Memorial's decision to deny him access is justified. [ 47 ] Memorial was obliged to withhold disclosure of the other redacted information.

The applications judge made no error in so holding. (iv) Expert Decision ( 2021 NLSC 99 ) [ 48 ] The expert decision was an interlocutory order made in respect of three related ATIPPA proceedings, including matter 2019 01G 5833 (application for judicial review) and two statutory appeals pursuant to s. 52 of ATIPPA . Mr.

Oleynik says the applications judge erred in ruling that the expert reports of Christopher Harris were inadmissible. [ 49 ] The Harris reports offered opinion evidence on the changes in metadata and the simultaneous removal of a BCC (blind copy) line on three emails disclosed by Memorial in response to an ATIPPA request. Legal counsel for Memorial advised Mr. Oleynik by May 25, 2020 email that “changes in metadata occurred automatically when imported into and/or exported from our document management software and produced to you". She provided Mr.

Oleynik with new copies of the disputed emails with the metadata included. [ 50 ] The applications judge concluded that the Harris reports had no logical relevance to the issues and were an unnecessary waste of the court's time: [16] … [T]he very essence of Oleynik's wanting to admit expert evidence is, as Harris opines … the discrepancies between the Emails in Issue (the removal and reappearance of the metadata and the simultaneous disappearance of BCCs) could not have occurred as a result of utilizing industry standard document management software. [17] The only purpose of the opinion is to attack the explanation and veracity of Memorial's counsel Ms.

Koren Thomson regarding the email she sent to Oleynik on 25 May 2020. She wrote, in part: "[a]ny minor changes in metadata occurred automatically when imported into and/or exported from our document management software and produced to you." [18] The opinion bears no logical relevance to the issue I have to decide in the judicial review of 2019 01G 5833, or the appeals of 201901G7928 and 202001G3967.

The opinion is also unnecessary and a waste of the Court's time for the issues raised by Oleynik's pleadings. … [24] The issues in the three subject proceedings will not require me to determine whether metadata was altered, or a BCC line removed, incidentally or otherwise, from the Emails in Issue, or the new copies provided to Oleynik on 25 May 2020. [ 51 ] The applications judge continued with reasons explaining the lack of relevance of the Harris reports in addressing the issues identified in the three proceedings.

The judge discussed the principles for admission of expert evidence from White Burgess Langille Inman v. Abbott and Haliburton Co. , 2015 SCC 23 , [2015] 2 S.C.R. 182 , and found that the Harris reports did not meet the threshold requirements for admissibility, and excluded the reports from evidence. [ 52 ] In addition, the applications judge indicated that he would have exercised his discretion to exclude the Harris reports even if they had met the threshold requirements for admissibility. [ 53 ] The discretion for an applications judge to exclude expert evidence was recognized by this Court in Compton v.

Toyota Canada Inc. , 2019 NLCA 79 : [28] The second stage or component of the Mohan analysis … provides that, even where the four threshold requirements for the admission of expert opinion evidence are met, admissibility remains subject to an ongoing risks/benefits analysis. In this second stage, the judge retains discretion to exclude evidence that otherwise meets the threshold requirements. … [ 54 ] Discretion to exclude this expert evidence is an example of the gatekeeper role assigned to trial judges and is influenced by several policy objectives.

The discretion exercised as part of the gatekeeper role is subject to deference by this Court. [ 55 ] The applications judge did the risks/benefits analysis for admission of the Harris reports, and concluded that the risks exceeded the benefits. He provided reasons explaining that he would have exercised his discretion to exclude the reports even if they had met the threshold requirements for admissibility:

[35] … I find the risk to the litigation process exceeds the benefits of admission of the expert opinion. … [37] The efforts Oleynik is making in this Court to introduce expert evidence goes far beyond the scope of a judicial review that ought to be confined to the Record: Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLSC 4 , at para. 34 (Interrogatories Decision) . There is no evidence before me that the expert opinion is necessary to supplement the record.

It runs the risk of turning the judicial review into a further complicated and time-consuming proceeding. … [39] In regard to the two [statutory] appeals, the hearings are expected to be expedited in furtherance of the ATIPPA purpose of "timely" access to information. The admission of the Harris opinion would result in increased resources to adjudicate what should be relatively straightforward matters.

It would undermine the principle of proportionality … [ 56 ] The applications judge correctly summarized and applied the legal principles for admission of expert evidence, as set in White Burgess , and properly determined that the evidence failed to pass the threshold for admissibility. In addition, the judge was in the best position to conduct the risks/benefits analysis in exercising his gatekeeper role to exclude the Harris reports. His exercise of discretion in these circumstances is entitled to deference. The judge made no error in excluding the Harris reports. (

v) Procedural Fairness [ 57 ] Mr. Oleynik claims that he was denied procedural fairness on the basis that the applications judge provided lower standards of due process to him as a self-represented litigant. Mr. Oleynik provides several examples (paras. 76 to 111 of his factum) where he claims this occurred, including: (1) the judge in the redaction decision improperly gave priority to third party privacy rights over Mr. Oleynik’s right to access information, (2) the judge improperly denied admission of the Harris reports, (3) the judge improperly denied most of Mr.

Oleynik’s applications (consolidation, interrogatories, cross-examination, and expert evidence), (4) the judge improperly allowed interruptions – i.e. objections – by opposing counsel during submissions, (5) the judge improperly accepted orders that “do not match the approved version”, and (6) the judge awarded costs to the Intervenor. [ 58 ] I have already discussed most of these examples above and, as indicated, I do not agree that the judge made any errors or otherwise acted improperly respecting them. [ 59 ] There is no basis on which to conclude that Mr. Oleynik did not have a fair hearing.

A review of the transcripts, the applications judge's decisions, and the submissions on this appeal, reveal that the conduct of the judge was even handed throughout, and on several occasions, involved pro-active assistance to Mr. Oleynik. [ 60 ] Mr. Oleynik’s lack of success on three of the applications, and partial success on one of the applications, that are the subject matter of these appeals, are not indicative of a lack of procedural fairness.

On each application, the judge exercised his discretion appropriately, including on his decision to deny the use of interrogatories, his decision to deny the right to cross-examine on affidavits, his decision to examine the redacted records in private, his decision upholding the redaction of personal information of third parties, and his decision to exclude the expert report. There were occasional objections raised by both sides during the hearings. These are normal in any judicial process.

Each objection was addressed by the judge in an evenhanded manner. [ 61 ] There is nothing in the record or the reasons to sustain Mr. Oleynik’s argument that he was subject to a lower standard of due process. [ 62 ] Consistent with the principles discussed by Fry C.J.N.L., writing for a unanimous Court in Taylor v. Mallany , 2019 NLCA 25 , at paras. 22-24 , the applications judge ensured that Mr. Oleynik was provided with fair access and equal treatment by the court, and had the opportunity to meaningfully make his submissions. There is simply no basis for Mr.

Oleynik’s argument that he received a lower standard of due process or that the hearings were unfair. Accordingly, I would reject this ground of appeal. (vi) Apprehension of Bias [ 63 ] Mr. Oleynik claims that the conduct of the applications judge gave rise to a reasonable apprehension of bias. [ 64 ] There is a strong presumption of judicial impartiality and a high burden of proving the claim on the party alleging bias ( Yukon Francophone School Board, Education Area # 23 v.

Yukon (Attorney General), 2015 SCC 25 , [2015] 2 S.C.R. 282 , at paras. 25-26 ). [ 65 ] The test for a reasonable apprehension of bias is discussed in Yukon , at paras. 20-21: What would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. [ 66 ] The examples that Mr.

Oleynik provides to support his claim of apprehension of bias, are set out at paras. 244, 247, and 249 of his factum: • Uncritically accepting Memorial’s submissions while disregarding his evidence and submissions; • Excluding evidence questioning the integrity of Memorial’s legal counsel and allowing Memorial’s counsel to mislead him; and • Failing to address non-compliance by Memorial with the court’s directions and orders. [ 67 ] The first example, acceptance of Memorial’s submissions and rejection of Mr. Oleynik’s submissions, is based on the final judgments in the applications. Mr.

Oleynik says, “When rendering his judgments under appeal [the applications judge] tended to

uncritically accept the Respondent’s submissions” (para. 244 of his factum). The lack of success, mostly, on the judgments rendered is not indicative of bias, or apprehension of bias. The reasoning in the judgments reflects a balanced approach to consideration of the evidence and submissions; the reasoning is sound in law and supports the outcomes. [ 68 ] The second example, exclusion of evidence questioning the integrity of Memorial’s legal counsel, relates to the exclusion of the Harris reports discussed above. Mr.

Oleynik wanted the applications judge to accept that expert evidence to assist in determining whether metadata on emails was altered, with his ultimate objective being to attack on the integrity of Memorial’s legal counsel. The applications judge excluded the reports because they were not relevant to the issues before the court. The exclusion of the reports on that basis was appropriate and does not support a claim for bias, or apprehension of bias. [ 69 ] The third example, failing to address non-compliance by Memorial with the court’s directions and orders, is also without foundation. The examples Mr.

Oleynik gives for non-compliance include a slight delay in filing one of the formal orders (incidentally, not one of the matters under appeal before this Court), failure to consider alternate dispute resolution, and presenting a draft order which, according to Mr. Oleynik, omitted agreed upon deadlines. [ 70 ] The court did not impose timelines for the filing of formal orders.

The only suggested timelines are set out in rule 49.03(1) of the Rules of the Supreme Court, 1986 : 49.03(1) … an order shall be drawn up by the successful party … and filed with the Court provided that when an order is not filed within ten days after the decision or direction is given, any other party may draw up, settle and file the order. [ 71 ] On one order, Memorial delayed filing until 30 days after the decision was rendered. There should be no consequence for this delay, and no inference of bias with the judge for failing to address the delay. As rule 49.03(1) indicates, Mr.

Oleynik had the option to draft and file the order himself if he was concerned about the delay. [ 72 ] The applications judge did not order that the parties engage in alternate dispute resolution. There is a direction in the interrogatories decision ( 2021 NLSC 4 , at para. 51 ) that the parties “consider” private mediation. A direction to consider private mediation is not an order that the parties engage in alternate dispute resolution.

There should be no consequence to either party for failing to pursue an alternate dispute resolution (such as private mediation), and no inference of bias with the judge for failing to address the parties’ failure to engage in private mediation. [ 73 ] Draft orders are reviewed and approved by the judge who heard the matter, before filing. If there was a draft order prepared by Memorial, and ultimately filed, that does not include terms imposed by the judge, then Mr. Oleynik can apply to have the order amended. It is a matter easily addressed and corrected, in the court below.

It is not a matter that supports an allegation of bias. [ 74 ] Applying the test for a reasonable apprehension of bias, I am satisfied that an informed person, viewing the matter realistically and practically - and having thought the matter through - would not have any reason to believe that bias, real or apprehended, entered into the adjudication of Mr. Oleynik’s applications. (vii) Prior Court Decisions Involving Mr. Oleynik as a Party [ 75 ] Mr.

Oleynik says that the applications judge erred by referencing court decisions from other jurisdictions in which he was a self- represented party, without affording him an opportunity to address those decisions. That allegation is rejected. The judge did afford Mr. Oleynik an opportunity to address those court decisions, and Mr. Oleynik did address those decisions during his reply. [ 76 ] Memorial’s counsel referred to the decisions as part of her closing submissions for the interrogatories decision. She was arguing for an award of solicitor and client costs, and referred to the decisions to illustrate that Mr.

Oleynik was not the typical self-represented litigant, and was in fact a very experienced litigant. [ 77 ] The applications judge advised Mr. Oleynik that he would have an opportunity to be heard regarding those decisions, and his experience as a self-represented litigant: Court …Counsel has indicated to me there are other cases not before this Court where you are an experienced self-represented litigant. Mr. Oleynik: I can explain. Court: I will come back [and] I will give you an opportunity to explain. (Transcript, September 30, 2020, at 36) [ 78 ] The judge did come back to this issue, and gave Mr.

Oleynik an opportunity to explain. In addressing the matter, during his final reply, Mr. Oleynik stated: The other one was references to the other proceedings in other jurisdictions. Mr. Justice, let me just refer to one of them because since if you say A, we need to say B, right. So, let me direct you and my learned friend to one of them, and I am (unintelligible) about that even, if I didn’t win. It was a shared decision. It means the outcome was split. I will refer you. It is University of Calgary v. Alberta Information and Privacy Commissioner [and Anton N. Oleynik] , 2019 ABQB 950 . It is very recent.

It’s – decision was filed, reasons were filed, in December 2019. … It summarizes a number of cases in which I was involved … (Transcript, September 30, 2020, at 180-181) [ 79 ] The judge referred to those decisions from other jurisdictions to illustrate that Mr. Oleynik had considerable experience before the courts as a self-represented litigant. The decisions were not relied upon for any legal principles. This is evident from the judge’s comment in 2021 NLSC 4 :

[53] As can be seen from a listing of case law involving Oleynik (at times, Oleinik) in the attached as Appendix "C", he is an experienced and prodigious litigator. He will be treated as such in my maintaining control of the proceedings and procedures. [ 80 ] There was no error made, in this context, when the judge referenced prior reported court decisions involving Mr. Oleynik. DISPOSITION [ 81 ] I would dismiss the appeals. COSTS [ 82 ] I would order that Mr. Oleynik pay party and party costs to Memorial for one counsel, based on column 4.

The column 4 award is justified on the basis of the complexity and difficulty of the issues included within Mr. Oleynik voluminous submissions and the reality that the Court was addressing multiple appeals that had been consolidated for a single hearing. The Intervenor did not seek costs, and in the circumstances, I would make no costs award in favour of the Intervenor for the appeal. Appeals dismissed.