2021 NLCA 28, 2021 NLCA 28

Anton Oleynik (applicant/appellant) v. Gary Kachanoski, President and Vice-Chancellor of Memorial University of Newfoundland (respondent) and Michael Harvey, in his capacity as the Information and Privacy Commissioner of Newfoundland and Labrador (intervenor) (21/06) Indexed As: Oleynik v. Memorial University of Newfoundland 2021 NLCA 28 6 C.A.N.L.R. 586 Court of Appeal of Newfoundland and Labrador Goodridge J.A. May 19, 2021

Summary: Mr. Oleynik filed an originating application for judicial review of a response by Memorial University of Newfoundland to an access to information request he made. In the court below, Mr. Oleynik filed an interlocutory application seeking to compel Memorial to answer interrogatories. The judge dismissed the interlocutory application and directed the filing of the record so that the judicial review could proceed. Mr. Oleynik appealed that order. He subsequently applied for a stay of enforcement of the interlocutory order, pending the disposition of his appeal of that order. Held: Application dismissed.

Goodridge J.A.: Mr. Oleynik did not meet the requirements of the three-prong test to grant the application for a stay of enforcement pending the appeal. Based on a preliminary assessment, there was no serious issue to be argued on the appeal. Mr. Oleynik would not suffer irreparable harm as a result of the stay not being granted. Assessing the balance of inconvenience, the expeditious administration of justice favoured denying the stay. Accordingly, the application for a stay of enforcement pending the appeal was denied (paragraphs 7-15). Cases cited: Vey v.

Newfoundland and Labrador Pharmacy Board , 2019 NLCA 72 Weir’s Construction Limited v. Warford Estate , 2016 NLCA 65 , 1 C.A.N.L.R. 282 Re:

section 487.02 of the Criminal Code , 2019 NLCA 6 Statutes considered: Access to Information and Protection of Privacy Act, 2015 , SNL 2015, c. A-1.2, sections 29(1) (a), 38(1) (a), 38(1) (b), 39(2) , 40(1) Rules considered: Court of Appeal Rules , NLR 38/16, rules 2 and 42 Counsel:

Appearing on his own behalf, the applicant/appellant; Koren Thomson, for the respondent; Andrew Fitzgerald, for the intervenor. The application was heard on May 18, 2021 before Goodridge J.A. The following memorandum of disposition was filed on May 19, 2021 by Goodridge J.A. ______________________________________________________________ MEMORANDUM OF DISPOSITION Goodridge J.A.: [ 1 ] This is an application of Anton Oleynik, pursuant to rule 42 of the Court of Appeal Rules, NLR 38/16 , for a stay of enforcement of paragraph 2 of an interlocutory order, pending the disposition of the appeal of that order.

The interlocutory order arose within the context of an originating application for judicial review of a response by a public body, the Respondent, to an access to information request made by Mr. Oleynik. [ 2 ] The order under appeal dismissed Mr. Oleynik’s interlocutory application to compel answers to interrogatories, directed the filing of the record for purposes of the judicial review, and awarded costs to the Respondent. The portion of the order (para. 2) for which Mr.

Oleynik seeks a stay states: “The Record is to be filed in accordance with paragraph 48 of the judgment …” [ 3 ] Paragraph 48 of the judgment ( 2021 NLSC 4 ) states: I am ordering the filing of the Record. Any records pertaining to a claim of privilege under

section 30 of the ATIPPA shall be identified as such and redacted from the Record, and subject to further order of the Court. In the normal course of an appeal of a public body's decision on an access to information request, the head of the public body is responsible for preparing the record for the appeal: section 56(7) of the ATIPPA . Since this is a judicial review, there is some uncertainty over who has responsibility for preparing and filing the Record.

Both Counsel for Memorial and the Commissioner are to coordinate the preparation and filing of the Record on or before 8 February 2021. [ 4 ] The ‘public component’ of the record was filed February 8, 2021, with redactions made by the Respondent pursuant to exceptions to access as set out in ss. 29(1) (a), 38(1) (

a) and (b), 39(2) and 40(1) of the Access to Information and Protection of Privacy Act, 2015 , SNL 2015, c. A-1.2 ( ATIPPA ). Those provisions of ATIPPA address the types of information that a public body may refuse to disclose, and the types of information that a public body shall refuse to disclose. [ 5 ] The ‘private component’ of the record, being the same documents that were previously filed but without redactions, is the subject of a sealing application.

In that application, issued in the Supreme Court (General Division) on April 23, 2021 with leave of the case management judge, the Respondent requested permission to file the ‘private component’ of the record under seal. The objective of the sealing application is to permit the redacted information to be available for viewing by the judge, without risking inadvertent disclosure to others. That sealing application is set for hearing on July 13, 2021. [ 6 ] Mr.

Oleynik acknowledges that the ‘public component’ of the record has already been filed, and that this stay application relates only to the ‘private component’ of the record. [ 7 ] In determining whether to grant a stay of enforcement pending an appeal, a three-pronged test is applied ( see Vey v. Newfoundland and Labrador Pharmacy Board , 2019 NLCA 72 , at para. 4 , and Weir’s Construction Limited v. Warford Estate , 2016 NLCA 65 , 1 C.A.N.L.R. 282 , at paras. 17-19 ). [ 8 ] The first prong of the test is whether there is a serious issue to be argued on appeal.

This requires a preliminary, but not a detailed or extensive, investigation of the merits of the appeal to ascertain whether the appeal is frivolous or vexatious. [ 9 ] The second prong of the test is whether the applicant for the stay will suffer irreparable harm if the stay is not granted. [ 10 ] The third prong of the test is an assessment of the balance of inconvenience. In Weir’s Construction , under this third prong, the Court considered as a relevant factor the “potential for avoiding unnecessary time, expense and resources” (para. 19). [ 11 ] As applied to this case, the test results in dismissal of Mr.

Oleynik’s application.

[ 12 ] Under the first prong, I am of the view, based on my preliminary assessment, that there is no serious issue to be argued on the appeal and that the appeal is frivolous. The order under appeal flowed from a procedural interlocutory application for reply to interrogatories. The interrogatories were filed in the context of a pending judicial review hearing that is before the Supreme Court (General Division). With limited exceptions, judicial review hearings are conducted solely on the basis of the record before the decision- maker whose decision is being reviewed ( see Re:

section 487.02 of the Criminal Code , 2019 NLCA 6 , at para. 172 ) . Replies to interrogatories would rarely be relevant or required. In this matter, it is especially unlikely that replies to interrogatories would be required because the applications judge has created an alternate means to supplement the record, should that be required.

This alternate means was referenced in the decision that is the subject of this appeal: [39] I hasten to add if in the determination of the 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. [ 13 ] Under the second prong, I am of the view that the applicant will not suffer irreparable harm if the stay is not granted.

The applicant says there could be irreparable harm on the basis that sealing application will be a waste of time if he succeeds on appeal, because there will be a hearing de novo . If Mr. Oleynik is correct in that view, then he will have been inconvenienced, and can seek an award of costs, if appropriate. This potential for inconvenience does not come close to irreparable harm. [ 14 ] The third prong of the test is an assessment of the balance of inconvenience. In this case, the applications judge ordered the Respondent and the Intervenor to file the record.

There is no inconvenience to the applicant if the stay is denied as the burden of producing the record falls on the Respondent and the Intevenor. In addition, under this third prong, the Court looks at “the orderly and expeditious administration of justice in the Court” ( Vey , at para. 8 , and rule 2 of the Court of Appeal Rules ). In this situation, we have an uncompleted matter, being the judicial review still to be heard, as well as the pending application for a sealing order, both before the Supreme Court, General Division.

The expeditious administration of justice favours denying the stay and allowing matters to proceed forward and be determined in the General Division. [ 15 ] The application is dismissed. The Respondent is awarded costs on this application under Column 3 of the Scale of Costs. Application dismissed.