MICHAEL HARVEY, in his capacity as THE INFORMATION v. PRIVACY COMMISSIONER OF, 2023 NLCA 2

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : Newfoundland and Labrador (Information and Privacy Commissioner) v. Beverage Industry Association of Newfoundland and Labrador, 2023 NLCA 2 Date : February 2, 2023 Docket Number : 202001H0010 BETWEEN: MICHAEL HARVEY, in his capacity as THE INFORMATION AND PRIVACY COMMISSIONER OF NEWFOUNDLAND AND LABRADOR APPELLANT AND: BEVERAGE INDUSTRY ASSOCIATION OF NEWFOUNDLAND AND LABRADOR FIRST RESPONDENT AND: HIS MAJESTY THE KING IN RIGHT OF NEWFOUNDLAND AND LABRADOR SECOND RESPONDENT Coram: W. H. Goodridge, D. M. Boone and K. J. O’Brien JJ.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador (G) 201801G7018 ( 2019 NLSC 222 ) Appeal Heard: December 7, 2022 Judgment Rendered: February 2, 2023 Reasons for Judgment by: K. J. O’Brien J.A.

Concurred in by: W. H. Goodridge and D. M. Boone JJ.A. Counsel for the Appellant: Andrew A. Fitzgerald K.C. Counsel for the First Respondent: Michael Hrabowsky Counsel for the Second Respondent: David G. Rodgers Authorities Cited: CASES CITED: Atlantic Lottery Corporation Inc. v. Newfoundland and Labrador (Finance), 2018 NLSC 133; Borowski v. Canada(Attorney General), (SCC), [1989] 1 S.C.R. 342; Powers v. Mitchell, 2019 NLCA 16; Corporate Express Canada Inc.v. Memorial University of Newfoundland, 2015 NLCA 52, 371 Nfld. & P.E.I.R. 137; Canada (Commissioner of Competition) v.

SecureEnergy Services Inc., 2022 FCA 25; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R.559; Northern Regional Health Authority v. Horrocks, 2021 SCC 42; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; ArcheanResources Ltd. v. Newfoundland (Minister of Finance), 2002 NFCA 43, 215 Nfld. & P.E.I.R. 124; Atlantic Highways Corporation v.Nova Scotia, (NS SC); Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23. STATUTES CONSIDERED: Access to Information and Protection of Privacy Act, 2015, SNL 2015, c.

A-1.2, sections 39(1), 19(1),96(1), 2, 96, 39, 2(cc), 3(1), 3(2), 8(1), 8(2), 27-41, 2, 16(1), 23, 19(2), 42(3), 44, 53(1), 53(3), 56(5);

Interpretation Act, RSNL 1990, c.I-19, sections 16, 11(2), 3(1); Access to Information and Protection of Privacy Act, SNL 2002, c. A-1.1, section 27(1)(b); Access toInformation Act, RSC 1985, c. A-1, section 27(1). TEXTS CONSIDERED: Ruth Sullivan, The Construction of Statutes, 7th ed (Toronto, ON: LexisNexis, 2022).

OTHER: Department of Finance (8 February 2017), Report A-2017-004, online: OIPC < www.oipc.nl.ca/pdfs/A-2017-004.pdf >;Department of Finance (22 July 2020), Report A-2020-009, online: OIPC < www.oipc.nl.ca/pdfs/A-2020-009.pdf>; City of Calgary (31August 2015), Alberta Order F2015-22, online: OIPC < https://oipc.ab.ca/wp-content/uploads/2022/01/Order-F2015-22.pdf>; CapeBreton Regional Municipality (Re), 2020 NSOIPC 6; Wolfville (Town) (Re), 2021 NSOIPC 8; Prince Edward Island (Health) (Re), (PE IPC); British Columbia (Transportation and Infrastructure) (Re), 2019 BCIPC 21.

O’Brien J.A.: [1] This appeal involves the

interpretation of three sections of the Access to Information and Protection of Privacy Act, 2015, SNL2015, c. A-1.2 (Act) that address a third party’s right to participate in an access to information request made to a public body. Thesections are: a. Section 39(1), which excepts from disclosure confidential information of third parties when such disclosure would be harmful tothe business interests of the third party. If the third party establishes that the criteria set out in section 39(1) are met, then the public bodymust refuse to disclose the information. b.

Section 19(1), which requires a public body who intends to disclose a record to make every reasonable effort to give advance noticeto a third party whose information might be excepted from disclosure by section 39(1). c. Section 96(1). If a third party who has been notified under section 19(1) disagrees with the public body’s intention to disclose, thethird party may file a complaint with the Information and Privacy Commissioner (Commissioner). Section 96(1) allows theCommissioner to give “a person” an opportunity to make representations during the investigation of a complaint.

OVERVIEW [2] The appeal has an unusual history. It arises from a request made under the Act to the Department of Finance (Department) forcorrespondence between it and the Atlantic Lottery Corporation (ALC) related to the operation of and revenue from video lotteryterminals (VLTs) in Newfoundland and Labrador.

[3] An email exchange between officials in the Department and ALC was located in response to the request. Attached to it was atable listing all VLT operators in Newfoundland and Labrador with their retailer operating name, location, and the total net revenuegenerated by VLTs at that location for the period of April 1, 2016 to August 31, 2016. This table is the focus of the dispute between theparties and I will refer to it as the “Information”. [4] The Department gave notice to ALC of its intention to grant access to the Information. It did not give notice to the VLToperators.

ALC objected to the grant of access and filed a complaint with the Commissioner. The Commissioner investigated thecomplaint and concluded that the Information was not excepted from disclosure under the Act and recommended its release (Report A-2017-04, the first report). The Department agreed. ALC unsuccessfully appealed the Department’s decision (Atlantic LotteryCorporation Inc. v.

Newfoundland and Labrador (Finance), 2018 NLSC 133). [5] Following the dismissal of ALC’s appeal, but prior to the Information being released, the Beverage Industry Association ofNewfoundland and Labrador (BIA), filed an originating application at the Supreme Court of Newfoundland and Labrador appealing theDepartment’s decision. The BIA is an industry association that represents VLT operators in the Province.

The Commissioner intervenedin the appeal as he was permitted to do under the Act. [6] The basis for the BIA’s appeal was that the release of the Information, which included each operator’s VLT revenue over thefive-month period, could cause harm to the business interests of the VLT operators. The BIA argued that the Information should beexcepted from disclosure by

section 39 of the Act. [7] The applications judge found that the VLT operators, acting through the BIA, had no statutory right of appeal. However, shefound that judicial review was available to them. Following judicial review, she concluded that the Commissioner owed a duty ofprocedural fairness to the VLT operators and had breached that duty by not notifying the VLT operators that he was investigating ALC’scomplaint and by not inviting representations from them.

The applications judge found that the Department did not engage inadjudicative decision-making and did not breach the duty of procedural fairness. [8] The applications judge set aside the Commissioner’s decision to recommend disclosure of the Information and ordered that theDepartment’s decision to release the Information be of no effect. She remitted the matter back to the Commissioner for reconsiderationafter inviting the BIA to make representations under section 96(1) of the Act.

She ordered column 2 costs to the BIA to be shared equallyby the Department and the Commissioner. [9] The Commissioner appealed the applications judge’s order. Although the Notice of Appeal listed numerous grounds of appeal,in his factum the Commissioner narrowed his attention to three main issues: 1. Whether the applications judge’s

interpretation of ss. 19 and 39 of the Act was correct, particularly as to how she interpreted theright to third party notice. 2. Whether the applications judge’s

interpretation of s. 96 of the Act was correct, particularly as to her determination that theCommissioner was required to give notice to the BIA. 3. Whether the applications judge erred in awarding costs against the Commissioner. [10] With respect to the first issue, the applications judge found that the

section 39 interests of the VLT operators were engaged bythe access request, notwithstanding that they did not own the Information. I would hold that this

interpretation was overbroad and inerror because

section 39 protects only proprietary interests. [11] Even considering the low threshold for notice under section 19(1), it was clear that the VLT operators did not own theInformation at the time that the Department was considering the access request. The VLT operators and ALC had agreed by contract thatthe Information was the sole property of ALC. Therefore, the Department was not required to notify the VLT operators of its intention torelease it. [12] With respect to the second issue, any right of a third party to participate in the process flows from receipt of section 19(1)notice.

The decision of the Commissioner to invite representations under section 96(1) is discretionary. I would not interpret

section 96 soas to create a duty on the Commissioner to invite representations from a person who asserts a non-proprietary interest in commercialinformation or from a third party who could potentially have been due notice under section 19(1). Therefore, I would hold that theCommissioner did not breach a duty of procedural fairness and would allow the appeal. [13] Because of my holdings on the first two issues, I need not consider whether there was any error with respect to the third issue ofcosts.

MOOTNESS [14] Before hearing the appeal, the Court asked the parties to address whether the appeal (on issues other than the costs award) hadbeen rendered moot and therefore that the Court ought not to decide it. The parties all agreed that the appeal should be heard. [15] The issue of mootness arose due to developments following the applications judge’s decision. Although the Commissionerappealed the decision, he complied with the applications judge’s order. The Commissioner gave the BIA an opportunity to makerepresentations and he then reconsidered the complaint and issued a second report (Report A-2020-009).

For the purpose of the secondreport, the Commissioner deferred to the applications judge’s finding that the BIA may have some form of proprietary interest in theInformation, although he disagreed with her conclusion. The Commissioner’s second report recommended that the Department releasethe Information. The Department notified the BIA and ALC that it agreed with the recommendation and intended to release theInformation unless one or both of them appealed the decision. Neither did and so the Information was released to the applicant. [16] This Court has discretion to decide a moot appeal. In Borowski v.

Canada (Attorney General), (SCC), [1989]

1 S.C.R. 342, the Supreme Court of Canada held that this discretion should be exercised with due regard for the rationales underlying the mootness doctrine: (1) the presence of an adversarial context, (2) judicial economy, and (3) the court’s role as the adjudicative branch in our political framework. At page 363, the Supreme Court specified: In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three basic rationalia for enforcement of the mootness doctrine is present. This is not to suggest that it is a mechanical process.

The principles identified above may not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and vice versa. Adversarial context [ 17 ] I am satisfied that the appeal has an adversarial context. Although the BIA raised the issue of mootness, it fully addressed the applications judge’s

interpretation of the Act in its factum and oral submissions. The Commissioner and the Department did as well. As a result, both sides of the debate were fully argued. This factor favours the Court exercising its discretion to decide the appeal. Judicial economy [ 18 ] This Court considered judicial economy in Powers v. Mitchell , 2019 NLCA 16 : [15] The second rationale to be considered is the concern for judicial economy based on the "need to ration scarce judicial resources among competing claimants" ( Borowski , at page 360).

Examples where it may be appropriate to exercise the discretion to hear a moot case, discussed in Borowski at pages 361 to 362, are: (1) special circumstances warrant resolution of the dispute; (2) a decision, while not resolving the parties' dispute, will nevertheless have some practical effect on their rights; (3) an important issue of a recurring nature, but brief duration, may evade judicial review because the issue will virtually always disappear before it is ultimately resolved; and (4) the issue is of public importance and its resolution is in the public interest. [ 19 ] The Commissioner submitted that judicial economy favours the hearing of the appeal.

He argued that the decision under appeal will continue to have practical effects upon the Commissioner, access to information applicants, public bodies and third parties. His position is that the applications judge interpreted the phrase “of a third party” more expansively than this Court did in Corporate Express Canada Inc. v. Memorial University of Newfoundland , 2015 NLCA 52 , 371 Nfld. & P.E.I.R. 137.

As a result, the Commissioner asserted that a public body must now spend additional resources identifying who potentially may have an ownership interest in records or risk being sanctioned for failing to provide notice. [ 20 ] The Commissioner argues that the applications judge’s decision introduces uncertainty as to who is entitled to notice under section 19(1) , and that this uncertainty affects all stakeholders interested in the operation of the Act .

Therefore, the Commissioner says that the issues of this appeal are not merely academic and their resolution by this Court is in the public interest. [ 21 ] Finally, the Commissioner argues that the issue of who is entitled to statutory notice will be a recurring problem. Because the timelines under the Act are short, he argues that the adjudication of an access to information request must occur before the issue of who receives third party notice can be addressed by a court, particularly a court of appeal.

Essentially, he argues that the issue is evasive of review because the Act dictates that access to information requests be processed expeditiously. Supporting this argument, in this case the Commissioner chose to follow the applications judge’s order rather than wait for adjudication of the appeal. [ 22 ] I find the Commissioner’s arguments to be persuasive. Additionally, there is still a live issue between the parties with respect to costs. In the result, I am satisfied that judicial economy favours the Court exercising its discretion to decide the appeal.

The Court’s adjudicative role [ 23 ] This appeal involves statutory

interpretation, which I am satisfied is part of the proper law-making function of the courts in our political framework ( Canada (Commissioner of Competition) v. Secure Energy Services Inc. , 2022 FCA 25 , at para. 39 ). Therefore, this factor also favours deciding the appeal. [ 24 ] In

summary, the principles identified in Borowski all support the same conclusion and I am satisfied that the Court should exercise its discretion to decide the question of the proper

interpretation of the Act ’s third party notice provisions in this appeal. STANDARD OF REVIEW [ 25 ] A court considering an appeal from a judicial review must decide if the reviewing judge chose the correct standard of review and applied it properly. To do this, the appellate court applies a correctness standard: Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559. This statement of the standard of review was recently confirmed in Northern Regional Health Authority v. Horrocks , 2021 SCC 42 .

In Northern Regional at paragraph 10, the majority described the approach of an appellate court as one that “accords no deference to the reviewing judge's application of the standard of review. Rather, the appellate court performs a de novo review of the administrative decision…”. [ 26 ] The Supreme Court made clear that this approach to appellate review is different from that set out in Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235.

Although the Housen standard may still apply where the applications judge acted as a decision- maker of first instance ( Northern Regional, at para. 12), the present appeal does not require a review of factual findings of the applications judge. Therefore, I will follow Agraira and apply a correctness standard. ISSUE 1: INTERPRETING SECTIONS 19(1) AND 39(1) OF THE ACT [ 27 ] These two sections of the Act are related because

section 19 requires public bodies to give notice to third parties who might assert the exception to disclosure contained in

section 39 prior to granting access to a record.

[ 28 ] It makes sense to start with section 39(1) , focusing on the phrase “of a third party”. “Third party” is defined in

section 2 (cc) of the Act as anyone other than the person who made the access to information request or the public body. Section 39(1) and the meaning of “of a third party” [ 29 ] Section 39(1) reads: 39.

(1) The head of a public body shall refuse to disclose to an applicant information (

a) that would reveal (

i) trade secrets of a third party , or (ii) commercial, financial, labour relations, scientific or technical information of a third party ; (

b) that is supplied, implicitly or explicitly, in confidence; and (

c) the disclosure of which could reasonably be expected to (

i) harm significantly the competitive position or interfere significantly with the negotiating position of the third party, (ii) result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied, (iii) result in undue financial loss or gain to any person, or (iv) reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into a labour relations dispute. (Emphasis added.) [ 30 ] Section 39(1) creates a three-part test.

All three parts must be established in order to apply the exception. The first part of the test, section 39(1)(a), requires that the information be one of the listed types and be “of a third party”. For the reasons that follow, I would interpret “of a third party” to mean that the third party must own the information. That is, the information must be the property of the third party.

Requiring ownership is consistent with the object and scheme of the Act [ 31 ] All statutes must be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the statute, the object of the statute, and the intention of the legislative branch. Additionally, every statute must be considered remedial, and must be given the liberal construction and

interpretation that best ensures the attainment of its objects according to its true meaning (

Interpretation Act, RSNL 1990, c. I-19, s. 16 ; and Archean Resources Ltd. v. Newfoundland (Minister of Finance) , 2002 NFCA 43 , 215 Nfld. & P.E.I.R. 124). [ 32 ] The object of the Act is stated in section 3(1) : 3.

(1) The purpose of this Act is to facilitate democracy through (

a) ensuring that citizens have the information required to participate meaningfully in the democratic process; (

b) increasing transparency in government and public bodies so that elected officials, officers and employees of public bodies remain accountable; and (

c) protecting the privacy of individuals with respect to personal information about themselves held and used by public bodies. [ 33 ] Section 3(2) gives direction on how the object is to be achieved. The portions of section 3(2) relevant to the present appeal are:

(2) The purpose is to be achieved by (

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

c) specifying the limited exceptions to the rights of access and correction that are necessary to … (iii) protect from harm the confidential proprietary and other rights of third parties; [ 34 ] Section 8(1) gives a person a right of access to a record held or controlled by a public body. This right is limited by section 8(2) , which states that the right of access does not extend to information excepted from disclosure under the Act . [ 35 ] Division 2 of

Part II of the Act ( sections 27 - 41 ) identifies information excepted from disclosure. Fifteen classes of exceptions are included.

Section 39 is the only one that protects the “confidential proprietary” rights “of third parties”, which are referenced in

section 3(2)(c)(iii). Interpreting “of a third party” to require a proprietary interest is thus consistent with the scheme of the Act describedin section 3(2). [36]

Section 39 balances the public’s interest in transparency and accountability against possible harm to private business interests. The legislative branch has chosen to strike that balance by limiting the protection offered to business interests with the three-part testestablished in section 39(1). An overbroad

interpretation of the

section risks tipping that balance contrary to the legislative branch’sintention. [37] Comparing

section 39 to the exception found in

section 40 of the Act further supports restricting

section 39 to informationowned by a third party.

Section 40 excepts from disclosure personal information where the disclosure would be an unreasonableinvasion of a third party’s personal privacy. “Personal information” is defined by

section 2 of the Act as “information about anidentifiable individual.” I agree with the Commissioner’s reasoning in paragraph 16 of the first report. The term “about” means that theinformation concerns or is somehow connected to the third party but does not necessarily belong to the third party. The legislature didnot use the word “about” in

section 39; it used “of”, which suggests a narrower ambit of excepted information. Requiring “ownership” is consistent with Corporate Express [38] Although not specifically interpreting the phrase “of a third party”, this Court came to a similar conclusion when it consideredthe third party business interest exception of the Access to Information and Protection of Privacy Act, SNL 2002, c. A-1.1 in CorporateExpress. That legislation has since been repealed and replaced by the Act. The

section considered in Corporate Express (s. 27(1)(b))read: The head of a public body shall refuse to disclose to an applicant information that would reveal … commercial, financial, labourrelations, scientific or technical information of a third party, that is supplied, implicitly or explicitly, in confidence and is treatedconsistently as confidential information by the third party … [39] Justice Hoegg, writing for the Court, found that the

section required that the origin and ownership of the information beidentified: [26] Whether the requested information is the confidential information of a third party requires that the contents of the requestedinformation be examined with a view to identifying the origin and ownership of the information. This is an essential part of the test forexemption set out in section 27(1)(b), along with whether the information was supplied by the third party explicitly or implicitly inconfidence and whether it was treated consistently as confidential information by the third party. Application of the test involves factfinding, the application of legal principles and

interpretation of the legislative provision. It is an objective determination, made in thecontext of the purpose of the legislation. Accordingly, I do not agree with Staples that the Judge erred in saying that the testunder section 27(1)(

b) is an objective one. [40] Although, Hoegg J.A. discussed both “origin” and “ownership”, it is clear that “of a third party” concerns “ownership”, while“origin” addresses the requirement that the third party supplied the information. This

interpretation is consistent with the Court’sholding in Corporate Express that the information at issue belonged to the public body, notwithstanding that some of it originated withthe third party. Requiring “ownership” is consistent with the

interpretation of “of a third party” in other provinces [41] The phrase “of a third party” is used in the third party business interest exception of privacy and access legislation of otherCanadian jurisdictions that implement a three-part test. The phrase has been consistently interpreted to require that the third party ownthe information in question: City of Calgary (31 August 2015) F2015-22, at para. 36; Atlantic Highways Corporation v.

Nova Scotia, (NS SC), at paras. 31-37; Cape Breton Regional Municipality (Re), 2020 NSOIPC 6, at paras. 45-49; Wolfville(Town) (Re), 2021 NSOIPC 8, at paras. 25-26; and Prince Edward Island (Health) (Re), (PE IPC), at paras. 19, 25-26. [42] In contrast, British Columbia’s third party business interest exception uses the phrase “of or about”, which has been interpretedmore broadly and does not require a proprietary interest (British Columbia (Transportation and Infrastructure) (Re), 2019 BCIPC 21, atpara. 16).

Neither beneficial interest nor risk of harm create a proprietary interest [43] Consistent with my comments above, the applications judge concluded that the words “of a third party” in

section 39 suggestthat the third party must have some form of proprietary interest (Application Decision, at para. 55).

My view differs from hers only to theextent she suggested that: (1) the phrase could encompass a beneficial interest (Application Decision, at para. 57); (2) section 39(1)(a)could capture information that might be inferred from the information contained in the record at issue (Application Decision, at para.60); and (3) the BIA’s risk of harm by the release of the Information might mean that the BIA retained ownership in it (ApplicationDecision, at paras. 57-58, 61). [44] That a third party may benefit from information is not sufficient to establish a proprietary interest for the purpose of the Act.Nor is it enough that a third party has an interest in the information because its disclosure may affect them.

Such an

interpretation ofproprietary interest is too broad. [45] Interpreting “of a third party” so expansively would favour private business interests over government transparency and thepublic’s right of access to information in a manner that is inconsistent with the Act’s object and the balance struck by

section 39. The

category of third parties affected by the release of information could extend well beyond those who own the information contained in the records. [ 46 ] Such a category could also be difficult to delineate, particularly within the timelines created by the Act . Section 16(1) requires a public body to respond to a request for information not more than 20 business days after receipt. Although the public body may apply to the Commissioner for an extension of time ( s. 23 ), the time to notify a third party does not suspend the running of the 20 days ( s.19(2) ).

Thus the scheme of the Act requires that public bodies be able to identify information “of a third party” in a timely manner. A precise definition that does not require the head of the public body to speculate about potential inferences from information or the possible effects of disclosure is more consistent with the scheme of the Act . [ 47 ] Considering harm independently from ownership is also more consistent with the three-part test established by

section 39 of the Act . The first part of the test requires that the third party have a proprietary interest in the information (s. 39(1)(a)). The second part, which is not at issue in this appeal, requires that the information be supplied in confidence. The third part of the test requires that the third party establish that disclosure of the information could reasonably be expected to cause harm (s.39(1)(c)). All three parts of the test must be established for the exception to apply and, although they may be related, they are independent requirements.

A third party cannot establish ownership of information by showing that they would be harmed by its disclosure. [ 48 ] The result of the foregoing is that once it was determined that the Information was the sole property of ALC, the Information could not be “of the BIA” and thus the

section 39 exception did not apply. Section 19(1) and the low threshold for notice [ 49 ] Section 19(1) sets out when a public body must give a third party notice: 19.

(1) Where the head of a public body intends to grant access to a record or part of a record that the head has reason to believe contains information that might be excepted from disclosure under

section 39 or 40 , the head shall make every reasonable effort to notify the third party. [ 50 ] The present appeal concerns information that might be excepted from disclosure under

section 39 only. [ 51 ] The Supreme Court of Canada considered the third party notice provision of the federal Access to Information Act , RSC 1985, c. A-1 , in Merck Frosst Canada Ltd. v. Canada (Health) , 2012 SCC 3 , [2012] 1 S.C.R. 23. The wording of that

section (s. 27(1)), is substantially similar to that of section 19(1) and I agree with paragraph 42 of Atlantic Lotto that Merck is binding authority on the point. [ 52 ] Justice Cromwell comprehensively reviewed a public body’s obligations to notify third parties at paragraphs 57 to 83 of Merck . I will highlight a few points relevant to this appeal. [ 53 ] First, Merck makes clear that disclosure without notice is only justified in clear cases. The threshold is high because the harm to third parties that might follow from inappropriate disclosure is irreversible: [72] I turn first to disclosure without notice.

The practical realities as well as the text of the notice provision in s. 27(1) suggest a high threshold for disclosure without notice. Such disclosure is only justified in clear cases, that is, where the head, reviewing all the relevant evidence before him or her, concludes that there is no reason to believe that the record might contain material referred to in s. 20(1). The institutional head cannot repent after the fact from an ill-advised decision to disclose. Disclosure without notice and any harm that might follow are irreversible.

Giving notice in all but clear cases reduces the risk of irremediable harm to the third party through inappropriate disclosure. Moreover, the institutional head may not have enough information to make a correct judgment about whether the information is exempt; the input of the third party may be required in order for the institutional head’s decision to be properly informed.

It is, therefore, both prudent and consistent with the text of the Act for the institutional head to disclose without notice only where the exemptions clearly cannot apply. [ 54 ] Merck underscores that public bodies may not have enough information to make a correct judgment about whether the information is exempt from disclosure without the input of the third party: [79] Given the nature of the exemptions in issue — trade secrets, financial and other confidential information, etc. — the third party whose information is being considered is generally in a better position than the head of the institution to identify information that falls within one of the s. 20(1) exemptions.

The third party knows and understands the industry in which it participates and has an intimate knowledge of the specific information, how it has been treated and the possible harm that could come from its disclosure. … [ 55 ] Finally, Merck emphasizes that public bodies owe third parties procedural fairness: [80] Moreover, observing a low threshold for third party notice ensures procedural fairness and reduces the risk that exempted information may be disclosed by mistake.

In addition, because the giving of notice opens the way to judicial review of a decision to disclose, observing a low threshold for third party notice also accords with one of the Act ’s animating principles — that decisions on the disclosure of government information should be reviewed independently of government — while also being consistent with the principles that government information should be available to the public and that necessary exceptions to the right of access should be limited and specific (s. 2(1)). [ 56 ] As noted in Atlantic Lotto , Merck does not directly address whether the obligation to review for potential exceptions extends to other parties, such as the VLT operators, identified in information provided by the ‘primary’ third party, here ALC.

I agree with the conclusion that it does: [50] Based upon the approach to notice expressed in Merck , a remedial

interpretation of

section 19 in the context of the Act as a whole, the potential for harm from disclosure, and the Act ’s limitation on a civil remedy, I consider that the obligation of the head to disclose extends beyond the primary third party to any other party reasonably identifiable in the requested information.

[ 57 ] However, in the particular circumstances of this case, in which the BIA acknowledged that the Information was the sole property of ALC,

section 39 could not apply. This made it one of the clear cases described in Merck for which notice was not required. ISSUE 2: INTERPRETING SECTION 96(1) OF THE ACT [ 58 ] If a public body decides to disclose a record, a third party given notice under section 19(1) may file a complaint with the Commissioner under section 42(3) of the Act . If the Commissioner is satisfied that it is an appropriate complaint to investigate, the Commissioner will conduct an investigation under

section 44 . [ 59 ] Section 44(1) requires the Commissioner to give notice to the parties to the complaint and advise them that they have 10 business days to make representations to him: 44.

(1) The commissioner shall notify the parties to the complaint and advise them that they have 10 business days from the date of notification to make representations to the commissioner. [ 60 ] Section 44(2) sets out how the parties may do that: 44.

(2) The parties to the complaint may, not later than 10 business days after notification of the complaint, make a representation to the commissioner in accordance with

section 96. [ 61 ]

Section 96 is at issue in this appeal. It reads: 96.

(1) During an investigation, the commissioner may give a person an opportunity to make a representation.

(2) An investigation may be conducted by the commissioner in private and a person who makes representations during an investigation is not, except to the extent invited by the commissioner to do so, entitled to be present during an investigation or to comment on representations made to the commissioner by another person.

(3) The commissioner may decide whether representations are to be made orally or in writing.

(4) Representations may be made to the commissioner through counsel or an agent. [ 62 ] Although she found no breach of procedural fairness by the Department for failing to give notice to the BIA under section 19(1) , the applications judge found that the Commissioner breached procedural fairness by failing to exercise his discretion pursuant to section 96(1) to invite the VLT operators to make representations. In essence, she placed a procedural duty on the Commissioner to give the VLT operators an opportunity to be heard. [ 63 ] I would not interpret

section 96 and the Commissioner’s duty in conducting a

section 44 investigation the same way. If a third party was given notice by the public body under section 19(1), then the Commissioner is obligated by section 44(1) to receive representations from that third party, should the third party wish to make them. However, I would not interpret

section 96 as creating an obligation on the Commissioner to invite representations from a person who asserts a non-proprietary interest in commercial information or from a third party who could potentially have been due notice under section 19(1). I will explain why. The use of “shall” vs. “may” [ 64 ] First, I note that

section 44 requires the Commissioner to give the parties to the complaint the opportunity to make representations by using the word “shall”. Section 96(1) does not; it uses the word “may”. [ 65 ] Section 11(2) of the

Interpretation Act , RSNL 1990, c. I-19 , states that the word "shall" shall be construed as imperative and the word "may" as permissive and empowering. However, section 11(2) of the

Interpretation Act is not determinative. As noted by Ruth Sullivan in The Construction of Statutes , seventh edition, (Toronto, ON: LexisNexis, 2022), at page 79 and 80, the legal effect of a provision that uses “may” varies depending on the purpose of the provision and its context. The interpreter must determine whether there is anything in the statute or in the circumstances that expressly or impliedly obliges the exercise of the power. [ 66 ] I find nothing in the context, object or scheme of the Act , to suggest that the word “may” in section 96(1) is imperative.

I would interpret the Commissioner’s authority under section 96(1) to give a person an opportunity to make a representation during an investigation as discretionary. It is not coupled with an obligation on the Commissioner to seek representations. [ 67 ] If section 96(1) created such an obligation, then the requirement of

section 44 (that the Commissioner give the parties to the complaint the opportunity to make representations) would be superfluous. This would be counter to the presumption against tautology. As explained by Sullivan at page 211, it is presumed that the legislature avoids superfluous or meaningless words. Every word and provision in a statute is presumed to have a specific function and so courts should avoid

interpretations that would render any part of a statute redundant or pointless. [ 68 ] Additionally, interpreting “may” as discretionary is consistent with the scheme of the Act as it pertains to third parties. If the public body has no reason to believe that either the

section 39 or the

section 40 exception may apply, a third party is not entitled to notice under section 19(1) and thus has no right to make a complaint to the Commissioner (s. 42(3)) or file an appeal directly to the court ( s. 53(1) ). Likewise, the third party has no right of appeal if the Commissioner refuses to investigate ( s. 53(3) ). Nor does the third party have a right of notice if the applicant appeals a decision not to disclose (s. 56(5)). In short, the Act only gives the right to make a complaint to the Commissioner, or to appeal to the court, to those third parties for whom there is reason to believe that the exceptions of

section 39 or

section 40 may apply. [ 69 ] The Act puts the obligation on the public body to determine whether section 19(1) notice should be given. It does so using the mandatory language of “shall” as section 19(1) reads in part: “the head shall make every reasonable effort to notify the third party”. As

underscored in Merck , this is not a responsibility that is easily discharged ( Merck , at paras. 87-88). [ 70 ] If the legislature intended to create the same responsibility on the Commissioner, I would expect it to do so clearly and with language consistent with that of section 19(1). This is the presumption of consistent expression.

As explained by Sullivan, at pages 217- 220, it is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings. [ 71 ] Although I disagree with the applications judge that the Act obliges the Commissioner to give persons other than those who are “parties to the complaint” the opportunity to make representations during an investigation, I agree with her that the Commissioner could use his discretion under

section 96 to hear from persons who are not parties (Application Decision, at para. 78). The language of

section 96 is broader (“a person”) than the language of sections 44(1) and (2) (“the parties to the complaint”). However, the choice is the Commissioner’s. [ 72 ] I would not interpret

section 96 so as to create a duty on the Commissioner to invite representations from third parties who could potentially have been due notice under section 19(1). ISSUE 3: COSTS [ 73 ] As successful parties, I would order that the Commissioner and the Department have their costs in this court and in the court appealed from. As such, I need not address whether the applications judge erred in principal by awarding costs against the Commissioner. As noted above, the Commissioner appeared before the applications judge as an intervenor.

Although costs awards are generally not made against intervenors, I would leave full consideration of this issue to another day. DISPOSITION [ 74 ] In the result, I would allow the appeal and order that the Department and the Commissioner have their costs on column 3 of the scale of costs in this Court and in the court appealed from. _____________________________ K. J. O’Brien J.A. I concur: _____________________________ W. H. Goodridge J.A. I concur: _____________________________ D. M. Boone J.A.