DOUGLAS TOMPSON APPLICANT - v. -, 2023 SKKB 247

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 247 Date: 2023 11 21 Docket: KBG-SA-01002-2023 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: DOUGLAS TOMPSON APPLICANT - and - CITY OF SASKATOON RESPONDENT Appearances: Douglas Tompson appearing on his own behalf Brandon P.M. Friesen for the respondent ___________________________________________________________________________ FIAT DANYLIUK J.

November 21, 2023 ___________________________________________________________________________ Academic politics are so vicious precisely because the stakes are so petty. [Exact attribution unknown] Introduction [ 1 ] This is an originating application brought by Mr. Tompson. Mr. Tompson seeks access to a full email between the City of Saskatoon’s [City] lawyers and a private law firm, an email which the City has heretofore only provided in highly redacted

form. The subject of the email does not appear to directly involve Mr. Tompson. The City resists this application. [ 2 ] While the precise nature of the matter before me is not identified with specificity in Mr. Tompson’s material, counsel for the City agreed it could be treated as an appeal under s. 46 of The Local Authority Freedom of Information and Protection of Privacy Act , SS 1990-91, c L-27.1 [ LAFOIP ]. It was argued in chambers on that basis and I have treated it as such. [ 3 ] For the reasons that follow, I am dismissing Mr. Tompson’s appeal or application.

Facts [ 4 ] The genesis of this matter is a dispute between neighbours – hence the quotation at the outset of this decision. Mr. Tompson has complaints about the City Solicitor’s Office, the Saskatoon Police Service, and the City administration generally. He is not really involved in any ongoing litigation or even disputes, yet he will not let go of this matter. I note the Foundational Rules speak to proportionality. In Mr. Tompson’s mind this series of perceived slights has taken on a disproportionate importance to him. [ 5 ] Mr. Tompson lives in a very nice older area of Saskatoon.

The house next door to him was sold to an individual in the fall of 2015. That new owner was employed by a homebuilder and some extensive, award-winning renovations were made to the neighbouring property. In the fall of 2017 that person sold the home next to Mr. Tompson’s to Regine Gerow-Scissons, whose husband is a building contractor. The Scissons began to build a new garage suite on their property. [ 6 ] Disputes arose between Ms. Gerow-Scissons and some of the neighbours.

These disputes centred on the manner in which the Gerow-Scissons garage suite was being constructed, and on whether local bylaws and rules were being followed by them. In 2019 Mr. Tompson applied for an injunction against the Gerow-Scissons ( Tompson v Gerow-Scissons , 2019 SKQB 163 ). His application was dismissed although a member of this Court issued some cautions to the respondent. [ 7 ] The underlying dispute traversed a number of topics. Much centred on whether underground drilling was infringing on the property rights of Ms. Gerow-Scissons’ neighbours on one side (Mr. Tompson) or the other (Ms. Fuller).

There was no proof of such encroachment against Mr. Tompson. For a number of reasons his application was dismissed. [ 8 ] This dispute among neighbours provided the backdrop for another bit of drama. Ms. Gerow-Scissons had ignored local ordinances and failed to obtain required permits to develop, thus she was the subject of one or more stop work orders from the City. The City Solicitor’s Office considered a bylaw prosecution and the issue was referred to the bylaw prosecutors. One of Mr.

Tompson’s ongoing complaints – which has very little, if anything, to do with the matter at hand – is that he was never actually contacted by a bylaw officer or prosecutor. All of these things were unfolding in the fall of 2019. [ 9 ] On September 26, 2019 Mr. Alan Rankine (a lawyer at the City Solicitor’s Office) sent an email to Mr. Matthew Holtzhausen, who at that time was a lawyer with a Saskatoon law firm that represented Ms. Gerow-Scissons. Mr. Tompson was, and is, keenly interested in this email. The City provided him with a copy but it was heavily redacted.

In fact, except for the sender and recipient the entire body of the email had been redacted. [ 10 ] Mr. Tompson sets out this background and much, much more in a long affidavit. The affidavit is long (16 pages, 124 paragraphs) and is also long on rhetoric, opinion, polemic, and argument. More on this later. [ 11 ] The material before me indicates that on September 27, 2019 Ms. Gerow-Scissons made a complaint to the Saskatoon Police Service concerning Mr. Tompson. It appears this was in the nature of a harassment complaint. Mr. Tompson was interviewed by a police officer in November 2019.

Despite no charges ever being laid against Mr. Tompson, it is very safe to say he was dissatisfied with the police investigation. Mr. Tompson received a warning from the police. He resents being warned when he feels Ms. Gerow-Scissons was the wrongdoer. [ 12 ] Mr. Tompson made a number of requests for information under LAFOIP . He received some documents from the police. He also received the redacted email from the City, which he now pursues. He complained about Ms. Gerow-Scissons’ lawyers to the Law Society of Saskatchewan.

He took the matter to the Office of the Saskatchewan Information and Privacy Commissioner. In the spring of 2023 the Privacy Commissioner issued a decision which denied the request for the redacted City of Saskatoon email, holding that the City had properly applied s. 21 (

c) of LAFOIP . [ 13 ] Mr. Tompson has now appealed that decision to this Court. His arguments centre on privilege, which the City argues misconstrues the true nature of the decision under appeal. Issues [ 14 ] The issues in this application are: 1. What evidence is properly before this Court? 2. What is the proper scope and process of this appeal under s. 46 of LAFOIP ? 3. Does s. 21(

c) of LAFOIP apply to the email in question? 4. Should the email be released to Mr. Tompson? 5. Should any costs be awarded?

Analysis 1. What evidence is properly before this Court? [ 15 ] When reviewing the facts above, I alluded to the fact that much of Mr. Tompson’s affidavit was improper. There was no formal objection by the City. However, the Tompson affidavit is so riddled with inadmissible material that I felt compelled to act on my own motion as gatekeeper of the record. [ 16 ] The impugned portions of the Tompson affidavit fall into two broad categories. Some amounts to hearsay, which is inadmissible in a court proceeding of this type. But by far, Mr. Tompson’s averments amount to scandalous material.

He makes assertions of opinion, argument, speculation, polemic. Some of the things he says are outrageous. Mr. Tompson has been in court before this appeal. He knows, or should know, the rules of procedure and the law of evidence pertains to him. He knows what should be in an affidavit and what should not be. He has not just walked on and over this legal line, he has trampled it. [ 17 ] I have attached to this decision a photocopy of the Tompson affidavit with the struck portions highlighted in yellow. None of this is a material fact. None of it has any place in an affidavit.

On reading the impugned averments, the reasons for striking same should be immediately obvious. However, I will provide some examples for the purpose of clarity: - The “Information Notes” inserted at paragraphs 16 and 44 have been struck. There is no provision for “Information Notes” in an affidavit. - Paragraph 19 has been struck as it is irrelevant and opinion. It reads: “The criminal complaint was very well written. I would expect nothing less from Mrs.

Regine Gerow-Scissons who teaches a university level course on communications, NURS 204.3 ‘Communications & Professional Relationships’, at the University of Saskatchewan.” - Paragraph 52 has been struck as it is irrelevant, opinion, argument, polemic, and is scandalous. It reads: “Mr. Jeff Will is a real estate agent, akin to the worst stereotype of a used car salesman, who was simply blinded with a hefty sales commission. Mr. Jeff Will works in an [ sic ] virtually unregulated occupation. Who could fault him for doing what appears to be done by every other realtor in his position? Mr.

Jeff Will is not a lawyer that is sworn to uphold a trusted position in society or who is tasked with: [reference omitted]”. - Paragraph 55 has been struck as it is irrelevant, opinion, argument, polemic, and is scandalous. It reads: “My absolute favorite excuse for realtors when representing clients who are with grifters acting as real estate flippers: ‘In some circumstances, a real estate agent is entitled to rely on representations of fact made by the vendor’”. - Paragraph 82 has been struck as it is irrelevant, opinion, argument, polemic, and is scandalous.

It reads: “The Law Society of Saskatchewan has a shockingly low opinion of my understanding of their regulatory procedures. If an investigation had been conducted against Leland Kimpinski LLP, it would have been sealed up tighter than a drum and any damming [ sic ] evidence would never have been shown to me since it would have been protected by regulator privilege”. - Paragraph 87 has been struck as it is irrelevant, opinion, argument, polemic, and is scandalous.

It reads: “I was politely told by the regulator of lawyers in the province of Saskatchewan to pound sand.” - Paragraph 104 has been struck as it is irrelevant, opinion, argument, polemic, and is scandalous. It reads: “I attribute the Scissons’ success at real estate grifting to a myriad of reasons but these reasons aren’t relevant to this court application.” [ 18 ] Should Mr. Tompson again find himself embroiled in litigation, this decision on his material ought to afford him some guidance as to what is permissible in an affidavit.

As explained to him in chambers, freedom of speech does not mean he can try to put in as evidence whatever he wishes to say, whenever he wishes to say it. There are rules. He has broken them. Many parts of his affidavit have been struck as a result. 2. What is the proper scope and process of this appeal under s. 46 of LAFOIP ? [ 19 ] This appeal is not a standard appeal on the record nor is it a classic judicial review application. It is a de novo proceeding, taken pursuant to ss. 46 and 47 of LAFOIP which read as follows: 46

(1) Within 30 days after receiving a decision of the head pursuant to

section 45 that access is granted or refused, an applicant or a third party may appeal that decision to the court.

(2) A head who has refused an application for access to a record or part of a record shall, immediately on receipt of a notice of appeal by an applicant, give written notice of the appeal to any third party that the head: (

a) has notified pursuant to subsection 33(1); or (

b) would have notified pursuant to subsection 33(1) if the head had intended to give access to the record or part of the record.

(3) A head who has granted an application for access to a record or part of a record shall, immediately on receipt of a notice of appeal by a third party, give written notice of the appeal to the applicant.

(4) A third party who has been given notice of an appeal pursuant to sub-section (2) or an applicant who has been given notice of an appeal pursuant to subsection (3) may appear as a party to the appeal.

(5) The commissioner shall not be a party to an appeal. 47

(1) On an appeal, the court:

(

a) shall determine the matter de novo; and (

b) may examine any record in camera in order to determine on the merits whether the information in the record may be withheldpursuant to this Act.

(2) Notwithstanding any other Act or any privilege that is available at law, the court may, on an appeal, examine any record in thepossession or under the control of a local authority and no information shall be withheld from the court on any grounds.

(3) The court shall take every reasonable precaution, including, where appropriate, receiving representations ex parte and conductinghearings in camera, to avoid disclosure by the court or any person of: (

a) any information or other material if the nature of the information or material could justify a refusal by a head to give access to arecord or part of a record; or (

b) any information as to whether a record exists if the head, in refusing to give access, does not indicate whether the record exists.

(4) The court may disclose to the Attorney General for Saskatchewan or the Attorney General of Canada information that relates to thecommission of an offence against: (

a) an Act or a regulation; or (

b) an Act of the Parliament of Canada or a regulation made pursuant to

an Act of the Parliament of Canada; by an officer or employee of a local authority if, in the opinion of the court, there is evidence of the commission of the offence.

(5) Where a head has refused to give access to a record or part of it, the court, if it determines that the head is not authorized to refuse togive access to the information or part of it, shall: (

a) order the head to give the applicant access to the record or part of it, subject to any conditions that the court considers appropriate; or (

b) make any other order that the court considers appropriate.

(6) Where the court finds that a record falls within an exemption, the court shall not order the head to give the applicant access to therecord, regardless of whether the exemption requires or merely authorizes the head to refuse to give access to the record. … [20] I reviewed the proper process under a LAFOIP appeal in Britto v University of Saskatchewan, 2017 SKQB 259[Britto 2017]. That case has been adopted and applied in other decisions and I adopt it here.

On the question of process, paragraphs 18 to21 apply: [18] I take these provisions to mean that under the Act there is, essentially, a two-step process involved in an appeal to this court.First, under s. 47(1)(b), this court decides whether to review the disputed records in camera. If so, then the court goes on toreview the records in light of the parties’ submissions and the applicable law, then determine whether any records ought to bereleased to the applicant pursuant to s. 47(5) or make any other appropriate order.

The court may also declare records exempt fromdisclosure (s. 47(6)). [19] Further, I agree with University counsel’s submission that because it is a de novo process and because the Commissioner’sfindings are non-binding, there is no duty of substantial deference to the Commissioner’s decision.

Members of this court areentitled, even obligated, to look at this matter afresh. [20] This strikes me as self-evident from the face of the legislation, but I have also considered: Confederation Life Insurance Co. vWoo (1994), (SK CA), 123 Sask R 150 (CA); Green v College of Physicians and Surgeons ofSaskatchewan (1986), (SK CA), 51 Sask R 241 (CA); Abouhamra v Prairie North Regional Health Authority, 2016SKQB 293, 16 Admin LR (6th) 265; Humboldt Electric Ltd. v Saskatchewan (Workers’ Compensation Board), 2016 SKQB 234; ReginaQu’Appelle Regional Health Authority v Dewar, 2011 SKQB 392, 384 Sask R 222; and Tomporowski v Saskatchewan Assn. ofArchitects (1994), (SK KB), 113 DLR (4th) 693 (Sask QB). [21] In Green, it was held that members of any panel conducting an appeal de novo would form their own conclusions based on theevidence and material adduced.

The duty in such an appeal is not to review and consider previous findings; rather, it is toindependently assess the issues based on the evidence presented to that appeal body. [Emphasis added] [21] I have applied this process to the situation at hand. [22] In doing so, I must first decide whether to examine the record in question – that is, the City of Saskatoon’s emailto the law firm for Ms. Gerow-Scissons. Counsel for the City filed that email in a sealed envelope which I ordered to be marked asExhibit R-1 in this appeal then be sealed, only to be opened by court order. Both the City and Mr.

Tompson encouraged me to review theemail in question, and I decided to do so in camera. [23] Given the nature of this proceeding (a de novo appeal) the threshold to meet for this Court to review the actualdocuments in issue is very low. The documents in question on these appeals will be examined by the presiding judge in virtually everycase. This is rendered necessary by virtue of the fact that the Privacy Commissioner’s decisions provide no details or particulars of thedocuments nor the reasons for granting or denying access to same.

[24] My review of the email in question has enabled me to take an informed approach to the next issue within thisappeal: whether s. 21(

c) of LAFOIP applies to the document in question, or whether this is a question of privilege as argued byMr. Tompson in his material and orally. 3. Does s. 21(

c) of LAFOIP apply to the email in question? [25] The Privacy Commissioner concluded the City properly interpreted and applied s. 21(c). I must now examinethat

section and conduct my own review to see whether the City did so. [26] I begin by noting that Mr. Tompson is under a misapprehension that fundamentally skews his arguments to theCourt. He argues the email is covered by some form of privilege. He says it is litigation privilege not solicitor-client privilege. [27] The City takes a different view. The City has not advanced any arguments that the email is subject to any classiclegal privilege, be it solicitor-client privilege, litigation privilege, or any other form of privilege known to the common law. Rather, theCity relies exclusively on s. 21(

c) of LAFOIP, as it did before the Privacy Commissioner. [28] The email in question was sent by the City’s lawyer to the lawyer for another party – not Mr. Tompson. Theparagraphs redacted by the City amounted to legal discussions between the City and another person. [29] I see s. 21(

c) as having been drafted broadly, and see this as intentional on the part of the Legislature. The Cityargues, and I concur, that its email to the other lawyer relates to the provision of advice or other services. In other words, they werehaving a legal discussion about a legal matter between the City and the other lawyer’s client. [30] In reaching this conclusion as to the proper

interpretation of s. 21(

c) I have referred to a publication by theOffice of the Saskatchewan Information and Privacy Commissioner, IPC Guide to LA FOIP (Regina) online: <https://oipc.sk.ca/guides/ipc-guide-to-la-foip> (15 November 2023) [Guide]. As I noted in Britto v University of Saskatchewan, 2018SKQB 92 at para 80 [Britto 2018], the Guide is exactly that, a guide providing assistance in interpreting the legislation. It is not binding.It is helpful. [31] At page 238,

Chapter 4, of the Guide the following assistance in interpreting s. 21(

c) is offered. The Guide notesthat the intent of this provision is “to allow parties to correspond freely in relation to matters about which they need to speak in order toallow the lawyer’s advice or services to be provided”. This being the intent, to carry it out this type of communication needs to beexempted from the requirement of disclosure even if not covered by classic legal privilege. [32] This was expanded upon in paragraph 39 of Britto 2017.

There, the exemption from disclosure was found to be a“removal of impediments to free and frank communications within government departments, which in turn ensured that undue outsidescrutiny would not undermine the ability of government to perform its essential functions”. [33] I see a further reason why s. 21(

c) has a broad scope, broader than classic legal privilege. That

section appliesnot only to “advice” but also to “other services”. This takes s. 21(

c) out of the narrow realm of legal privilege and into a new statutoryarea of consideration. Legal privilege covers legal advice provided by a lawyer, “without prejudice” resolution discussions, anddocuments and discussions related to litigation. It is important to understand that those “classic privilege” matters are already caught byanother provision in LAFOIP – s. 21(a). Unless s. 21(

c) covers something else, it has no effect and is rendered nugatory. That isinconsistent with the accepted principles of modern statutory

interpretation. [34] On behalf of the City of Saskatoon, Mr. Friesen makes an excellent point at paragraphs 26 and 27 of his brief: 26. Upon review of the entirety of

section 21, it becomes evident that

section 21 casts a progressively widening net of exemptions.Clause 21(

a) is the most restrictive, being applicable only to records containing information subject to privilege. Clause 21(

b) is broader– it applies to records prepared by or for a local authority’s legal counsel. Clause 21(

c) is even broader yet – it applies to recordscontaining correspondence between legal counsel for the local authority and any other person. 27. Applying the “no tautology” principle, which requires statutes to be interpreted in a manner that presumes the Legislature does notuse meaningless words or clauses, it is evident that the subclauses of

section 21 must be intended to capture different things: 1) Clause 21(

a) captures legal advice and other privileged material; 2) Clause 21(

b) captures records prepared by or for legal counsel; and 3) Clause 21(

c) captures correspondence from legal counsel. [35] Indeed, I reached a similar conclusion at paragraph 33 of Britto 2017. To have any true meaning, s. 21(

c) musthave the broadest ambit in terms of exemptions from disclosure. Graphically, s. 21 looks like a pyramid with (

a) being at the narrow topand (

c) being at the widest expanse along the bottom. Overall, the wording used in s. 21(

c) comports with authority holding suchwording to have the broadest scope. See, for example, the Britto decisions as well as R v Nowegijick, (SCC), [1983] 1SCR 29. [36] This is also the view reached by the Privacy Commissioner and it is set out at page 239 of the Guide in the formof a two-part test which determines if a record falls under s. 21(c).

The Privacy Commissioner poses two questions in this test: first, doesthe record comprise correspondence between a lawyer for a local authority and any other person; second, does that correspondence relateto a matter involving the lawyer providing advice or other services? [37] Reviewing the email in question methodically, I have determined the email amounts to correspondence betweenthe City’s lawyer and “any other person”. Second, it is beyond dispute that the email is correspondence. It is in writing and it was

transmitted by one person to another. Third, the sender was the City’s lawyer, Alan Rankine. The recipient was Matthew Holtzhausen, also a lawyer but not for the City. He was the lawyer for another party. Finally, I have determined that the City’s email relates to the provision of legal advice or other services by Mr. Rankine. [ 38 ]

Section 21(

c) clearly applies to the email in question. 4. Should the email be released to Mr. Tompson? [ 39 ] Given that s. 21(

c) applies to the email, the answer to this question is clearly “no”. The email from the City’s lawyer to another lawyer falls squarely within the widest exemption in s. 21. The proper

interpretation and operation of this statute exempts the City from disclosing an unredacted copy of the email to Mr. Tompson. I must dismiss Mr. Tompson’s application. 5. Should any costs be awarded? [ 40 ] The City of Saskatoon claimed costs. Generally speaking costs follow the event. Mr. Tompson filed an inappropriate affidavit that was largely argumentative and full of opinion. He persisted in maintaining a position on this application in the face of clear case law to the contrary. [ 41 ] Costs are warranted. [ 42 ] I am using my broad discretion under

Part 11 of The King’s Bench Rules to award costs against Mr. Tompson in favour of the City, and also to fix those costs. Mr. Tompson is ordered to pay costs to the City of Saskatoon in the fixed sum of $1,500.00. Conclusion [ 43 ] The email from the City of Saskatoon’s lawyer to another lawyer is exempted from disclosure pursuant to s. 21 (

c) of LAFOIP . Accordingly, Mr. Tompson’s application is dismissed. Further, Mr. Tompson is ordered to pay costs to the City of Saskatoon in the fixed sum of $1,500.00. Should the City of Saskatoon wish to take out a formal order so as to support a judgment, Rule 10-4 is waived. J. R.W. DANYLIUK