GEOPHYSICAL SERVICE INCORPORATED APPELLANT AND: ED MARTIN RESPONDENT AND: EDWARD P. RING, in his capacity as THE INFORMATION v. PRIVACY, 2015 NLCA 36

Date: 20150803 Docket: 13/84 Citation: Geophysical Service Incorporated v. Martin , 2015 NLCA 36 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: GEOPHYSICAL SERVICE INCORPORATED APPELLANT AND: ED MARTIN RESPONDENT AND: EDWARD P. RING, in his capacity as THE INFORMATION AND PRIVACY COMMISSIONER OF NEWFOUNDLAND & LABRADOR INTERVENOR Coram: Barry J.A. Application Heard: June 30, 2015 Decision Rendered: August 3, 2015 Reasons for Decision by Barry J.A. Counsel for the Appellant: Kate O’Brien Counsel for the Respondent: Tracy Pasley Counsel for the Intervenor: Andrew A. Fitzgerald

Barry J.A.: I. FACTS AND STATUORY PROVISIONS [ 1 ] Regulations of the Federal and Provincial governments require companies such as Geophysical Service Incorporated (“GSI”) doing geophysical exploration offshore in this Province to provide copies of the geophysical data to the Canada-Newfoundland Offshore Petroleum Board (“C-NLOPB”). The data is to be held confidential for 10 years. [ 2 ] GSI alleges that after the 10-year non-disclosure period C-NLOPB has released to Nalcor (a public body where Ed Martin is president) some of the deposited data.

GSI claims in a companion action where it is plaintiff and Nalcor and the Province are defendants that even after 10 years the C-NLOPB must still respect the confidentiality of the deposited data. [ 3 ] GSI applied to Nalcor under the Access to Information and Protection of Privacy Act (“ ATIPPA ”), SNL 2002, c. A-1.1, for disclosure as follows: Since the inception of Nalcor, any and all access it has had from any source to G.S.I. seismic data or work products.

Please list dates, source of information, description of information, requisition forms, meetings, documents, digital or other media containing data, etc. [ 4 ] Nalcor refused the application to disclose and claimed any such information and even the fact of whether it had received any information was commercially sensitive data which was protected from disclosure under the Act . [ 5 ] GSI appealed at the Trial Division the refusal to disclose.

The Trial Division judge hearing the ATIPPA appeal decided the appeal should be stayed on the basis that it is premature until the companion action has determined whether GSI retains any proprietary rights to the deposited data. That Trial Division decision is now the subject of an application for leave to appeal to this Court. [ 6 ] Edward P. Ring, the Information and Privacy Commissioner of Newfoundland and Labrador, did not intervene at the Trial Division but has applied to intervene in this proceeding in this Court pursuant to rule 7.05 of the Rules of the Supreme Court, 1986 . [ 7 ] Rule 7.05 reads:

(1) Any person may, with leave of the court, intervene in a proceeding and become a party thereto if (

a) that person claims an interest in the subject matter of the proceeding , including any property seized or attached in the proceeding, whether as an incident to the relief claimed, enforcement of the order therein, or otherwise; (

b) that person's claim or defence and the proceeding have a question of law or fact in common; or (

c) that person has a right to intervene under a statute or rule .

(2) The application for leave to intervene shall be supported by an affidavit containing the grounds thereof and shall have attached thereto, when practical, a pleading setting forth the claim or defence for which intervention is sought.

(3) On the application, the Court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the parties to the proceeding and it may grant such order as it thinks just. [ 8 ] The ATIPPA provides as follows for reviews and appeals: Review and appeal 43(1) A person who makes a request under this Act for access to a record or for correction of personal information may ask the commissioner to review a decision, act or failure to act of the head of the public body that relates to the request, except where the refusal by the head of the public body to disclose records or parts of them is (

a) due to the record being an official cabinet record under

section 18; or (

b) based on solicitor and client privilege under

section 21. . . .

(3) Notwithstanding subsection (1), a person who makes a request under this Act for access to a record or for correction of personal information may, within 30 days after the person is notified of the decision, or the date of the act or failure to act, appeal directly to the Trial Division under

section 60 .

(4) A person who has appealed a decision directly to the Trial Division shall not ask the commissioner to review a decision under this Part, but another party to the request may do so.

(5) The commissioner may refuse to review a decision, act or failure to act where an appeal has been made to the Trial Division. Response of Public Body 50.

(1) Within 15 days after receiving a report of the commissioner, the head of a public body shall (

a) make a decision to follow the recommendation of the commissioner or a decision that the head of the public body considers

appropriate; and (

b) give written notice of the decision to the commissioner and a person who was sent a copy of the report.

(2) Whether or not the head of the public body follows the recommendation of the commissioner, the head of the public body shall, in writing, inform the persons who were sent a copy of the report of the right to appeal the decision to the Trial Division under

section 60 and of the time limit for an appeal.

(3) Where the head of the public body does not give notice within the time required by subsection (1), the head of the public body is considered to have refused to follow the recommendation of the commissioner. Appeal to Trial Division 60.

(1) Within 30 days after receiving a decision of the head of a public body under

section 50 , an applicant or a third party may appeal that decision to the Trial Division .

(2) An appeal may also be commenced by an applicant under this

section in accordance with subsection 43 (3). Appeal or intervention by commissioner 61.

(1) The commissioner may, with the consent of the applicant or third party involved, appeal a decision of the head of a public body in accordance with

section 60.

(2) The commissioner may intervene as a party to an appeal under

section 60. II. THE ISSUES [ 9 ] Three issues arise: (

i) On an application for intervention by the Commissioner at the Court of Appeal level, should the Commissioner be treated as having a “right to intervene under a statute or rule” within the language of Rule 7.05(1)(c)? (ii) If not, should the Commissioner be treated as having an “interest in the subject matter of the proceeding”? (iii) If leave to intervene is granted, should intervention be subject to conditions? III. THE LAW AND ANALYSIS (

i) Rule 7.05(1)(c) [ 10 ] The Commissioner submits that leave to intervene should be granted pursuant to rule 7.05(1)(

c) on the basis of section 61(2) of the ATIPPA , which reads: 61(2) The Commissioner may intervene as a party to an appeal under s. 60 . [ 11 ] The Commissioner argues that since the decision of the justice of the Trial Division arises out of an appeal filed by GSI pursuant to

section 60 of the ATIPPA , the Commissioner should be found to fall within the language of s. 61(2) and to have a statutory right to intervene under

section 60. [ 12 ] Nalcor objects to this characterization of the appeal as one under

section 60 and points to subsection 43(3) of the ATIPPA and the reference to persons not obtaining disclosure appealing directly to the Trial Division under

section 60. Nalcor says the Commissioner did not intervene at the Trial Division hearing, where it had the statutory right to do so, and neither

section 60 nor

section 43 provides a right to intervene at the Court of Appeal level. Nalcor argues that if the Legislature had intended for the Commissioner to have a right to intervene on an appeal from the Trial Division, it would have said so. I am not persuaded by this argument. [ 13 ] I agree with the Commissioner’s submission that the present proceeding should be viewed as falling within the words of section 61(2), “an appeal under

section 60”. The proceeding was commenced at the Trial Division under

section 60 and the present appeal to this Court arises from a decision rendered pursuant to the same section. The Application for Leave to Appeal filed by GSI stresses that leave is necessary because the Trial Division decision has brought GSI’s ability to argue its ATIPPA appeal to a halt. If the Commissioner has the right to intervene at the Trial Division appeal hearing, I believe it reasonable to infer that the Legislature intended the Commissioner to have the right to intervene at any stage until the proceedings have been terminated or finally resolved.

If this were not the case the Commissioner would have to incur unnecessary expense intervening at the trial level in every ATIPPA appeal to preserve its right of intervention, when the Commissioner, as in this case with the decision to stay, may only become concerned after an issue has been raised in the Trial Division decision on an appeal.

Nothing in the ATIPPA indicates that the legislature sought that result. (ii) Rule 7.05(1)(a) [ 14 ] If I am wrong on the statutory right to intervene, I conclude in any event that this is an appropriate case for this Court to exercise its discretion and allow intervention by the Commissioner under rule 7.05(1)(

a) because he has an interest in the subject matter of the proceeding. [ 15 ] This Court has accepted that a person may apply for intervenor status at the Court of Appeal stage: Elton v. Elton Estate , 2009 NLCA 34 , 287 Nfld. & P.E.I.R. 46.

[16] Hoegg J.A. in Eastern Regional Integrated Health Authority v.

Association of Registered Nurses of Newfoundland andLabrador, 2014 NLCA 52, 358 Nfld. & P.E.I.R. 358 at paragraph 4, identified factors to be considered under Rule 7.05: The jurisprudence addressing Rule 7.05 has identified sufficiency of an Intended Intervenor’s interest, whether the Intended Intervenorwill make a useful contribution to the proceedings, whether its participation will cause undue delay, and whether its participation will beburdensome, expensive or otherwise prejudicial to the parties as factors for consideration in determining Rule 7.05 applications. (SeeWarford v.

Weir’s Construction Limited, 2012 NLCA 37, 323 Nfld. & P.E.I.R. 174, Forsey v. Eastern Regional Health Authority, 2007NLTD 101, 267 Nfld. & P.E.I.R. 19 and Elton Estate v. Elton, 2009 NLCA 34, 287 Nfld. & P.E.I.R. 46.) Whether public law issues areinvolved is also a factor for consideration (Warford, paragraph 8). [17] The Commissioner is an independent statutory officer of the House of Assembly of Newfoundland and Labrador, responsiblefor the daily administration of the ATIPPA.

His duties and responsibilities include conducting statutory reviews of decisions of publicbodies under section 43(1) of the ATIPPA and investigating complaints about privacy and other matters pertaining to the ATIPPApursuant to

section 44. Clearly, in performing this statutory mandate the Commissioner has developed an expertise in the operation andadministration of access to information law in the Province. [18] The decision of the Trial Division under appeal involves

interpretations of provisions of the ATIPPA, specifically, subsection12(2) (content of response),

section 24 (disclosure harmful to the financial or economic interests of a public body), and

section 27(disclosure harmful to the business interests of a third party). The Commissioner’s office regularly conducts investigations and reviewsdecisions of public bodies which involve these same sections. The Commissioner’s affidavit states, and I accept, that how these sectionsare interpreted will impact upon the manner in which the Commissioner will have to perform his statutory mandate. [19] Other significant issues raised on this appeal, which the Commissioner deposes will significantly impact the operation andinterpretation of the ATIPPA, include: - The correct

interpretation of s. 5.4(1) of the Energy Corporation Act, SNL 2007, c. E-11.01, in conjunction with the ATIPPA; - Whether or not the identity of an Applicant seeking access to information and the reason(

s) or motive(

s) for the access toinformation request should be considered in determining an ATIPPA appeal; - What role, if any, ongoing civil proceedings should have upon the proper and timely adjudication of an ATIPPA appeal; - Whether a Court has the statutory power to order a stay of proceedings in an ATIPPA appeal, and if so, under what circumstances. [20] In Warford v. Weir’s Construction Limited, 2012 NLCA 37, 323 Nfld. & P.E.I.R. 174, I stated: An “interest” within Rule 7.05(1)(

a) extends to an interest in the outcome of an appeal when a legal issue to be determined on the appealwill be binding on future similar litigation to which the applicant will be a party; Newfoundland (Minister. of Govt. Services and Lands)v. Drew (2000), (NL SC), 191 Nfld. & P.E.I.R. 82 (Nfld. T.D.), at paras. 13-17. Here the question at issue iswhether the Commission has the right under s. 46 to determine whether an action commenced by the Commission itself (as opposed to aworker) is prohibited by the Act. The decision will be binding on future similar cases.

Also, it is a public law issue warranting a lessrigid approach in the exercise of the Court’s discretion to permit interventions: Drew, at paragraph 23. The court and society will benefitby receiving different points of view on such an issue. [21] The issues to be determined on this appeal will be binding in future similar litigation to which the Commissioner will be a partyand have a public law aspect in that their resolution will likely impact individuals who request access to information in the future.

Thepublic law aspect of this appeal warrants the Commissioner being granted leave to appeal on the basis of rule 7.05(1)(a). [22] By granting under subsection 61(2) of the ATIPPA the right to the Commissioner to intervene on an appeal to the Trial Divisionunder

section 60, the Legislature has clearly indicated that the Commissioner has an interest in the subject matter of proceedings such asthis where the head of a public body has refused disclosure. [23] I am satisfied the Commissioner has a significant interest in the

interpretation and operation of the ATIPPA in this Province asset out in his affidavit and can provide a unique and enhanced perspective regarding the operation of access to information law. Drawingupon the Commissioner’s expertise will promote better, more informed decision-making and increased public acceptance of courtdecisions. See John Sopinka and Mark A. Gelowitz, The Conduct of an Appeal, (3rd. ed.

Markham, ON: LexisNexis, 2012), at pp. 342-343. [24] I do not accept Nalcor’s submission that leave to intervene should not be granted because the Commissioner will not beadversely affected by the judgment respecting the issues on appeal. As noted in Warford, a binding decision on a public law issuewarrants a less rigid approach to intervention. Nor do I accept Nalcor’s argument that since statutory intervention is at the heart of theappeal, the Commissioner’s intervention will not be needed. A key factor in the process of statutory

interpretation is determination ofthe effect of one or another

interpretation on matters of public policy. The Commissioner will provide useful information regarding howadoption of a particular

interpretation will affect the operation of access to information law. [25] I have considered whether the Commissioner’s intervention will unduly delay or prejudice the parties and I am satisfied it neednot have this effect. The Commissioner has made this application early in the proceedings and has committed to file his writtensubmission in a timely fashion. To permit the Commissioner to intervene in these circumstances need not cause an injustice or excessiveburden on the parties. See Warford and Eastern Regional Health Integrated Authority. (iii) Conditions on Intervention

[ 26 ] Nalcor has requested that any intervention be limited in scope to providing only policy-based background submissions on the applicable sections of the ATIPPA, addressing only issues where the Commissioner can demonstrate specific expertise beyond the existing parties and the Court, and raising no new issues or issues not fully canvassed at the Trial Division. [ 27 ] I am satisfied that Nalcor’s concerns will be met by recognizing that this Court will retain a discretion to determine the scope of the issues to be addressed in order to avoid imposing an excessive burden on the parties or causing an injustice. IV.

SUMMARY AND DISPOSITION [ 28 ] In

summary: (

i) The Commissioner has a right to intervene under s. 61(2) of the ATIPPA and leave is granted to intervene pursuant to rule 7.05(1)(c). (ii) The Commissioner should in any event be granted leave to intervene pursuant to rule 7.05(1)(

a) as a person with an interest in the subject matter of the proceeding. (iii) Out of an abundance of caution I order that the Commissioner’s intervention be limited to addressing the issues and policy considerations raised by the parties and matters necessarily incidental to these, unless and until otherwise determined by the Court, and the Commissioner shall adhere to the time limits set out in the Rules of Court or as directed by the Court.

The Commissioner shall not be entitled to costs but may be subject to these if the Commissioner causes undue delay or prejudices in other ways the adjudicative rights of the parties. (iv) There is no award of costs on this application. _________________________________________ L. D. Barry J.A.