Oleynik v University of Calgary, 2023 ABKB 43

Court of King’s Bench of Alberta Citation: Oleynik v University of Calgary, 2023 ABKB 43 Date: 20230125 Docket: 2201 04192 Registry: Calgary Between: Dr. Anton Oleynik Respondent (Applicant on Judicial Review) - and - The Governors of the University of Calgary and the Office of the Information and Privacy Commissioner Applicants (Respondents on Judicial Review) _______________________________________________________ Endorsement of the Honourable Justice M.H. Hollins _______________________________________________________ [ 1 ] In 2016, Dr.

Oleynik asked the University of Calgary to provide him with copies of a number of records. Dissatisfied with the response from the University, he went to the Office of the Information and Privacy Commissioner (OPIC), which conducted an inquiry resulting in the decision of the Adjudicator John Gabriele on March 25, 2022. [ 2 ] Dr. Oleynik has filed an Originating Notice seeking judicial review of the decision of Adjudicator Gabriele and has named both OPIC and the University as Respondents.

[ 3 ] Before appearing before me in Civil Chambers, the parties had had a scuffle about scheduling the hearing date for the judicial review. As counsel for the University was not available on the date unilaterally booked by Dr. Oleynik, my first order of business was to direct the parties to reschedule the hearing of the judicial review, which was done. [ 4 ] The remaining business is the preliminary application of the University to strike Dr. Oleynik’s Affidavit affirmed March 30, 2022, and filed April 7, 2022, contemporaneously with his Originating Application for judicial review.

In addition, the University wants Dr. Oleynik’s June 21, 2022, Brief struck as it contains multiple references to the April 7 Oleynik Affidavit. [ 5 ] The University complains that the April 7 Oleynik Affidavit contains new evidence not before the Adjudicator and therefore not permitted under Rule 3.22. That Rule reads as follows: Evidence on judicial review 3.22 When making a decision about an originating application for judicial review, the Court may consider the following evidence only: (

a) the certified copy of the record of proceedings of the person or body that is the subject of the application, if any; (

b) if questioning was permitted under rule 3.21, a transcript of that questioning; (b.1) if the originating application is for relief other than an order in the nature of certiorari or an order to set aside a decision or act, an affidavit from any party to the application; [1] (

c) anything permitted by any other rule or by an enactment; (

d) any other evidence permitted by the Court. [ 6 ] Dr. Oleynik opposes this application, first on the basis that his April 7 Affidavit contains no new information and second, on the basis that his originating application is not for certiorari nor for an order to set aside a decision and so R 3.22(2)(b.1) permits the filing of an additional Affidavit. Does the April 7 Oleynik Affidavit Contain New Information? [ 7 ] Dr. Oleynik’s initial request for information and the University’s response to that request dates back to 2016. OPIC’s inquiry appears to have begun in approximately 2019.

On or about March 15, 2022, OPIC “revived” the inquiry and issued its decision. [ 8 ] The April 7 Oleynik Affidavit attaches a number of pieces of correspondence/emails between himself and the office of the Adjudicator. Cross-referencing these to the index to the Certified Record of Proceedings, I can see that these are duplicates of correspondence included there. [ 9 ] However, the April 7 Oleynik Affidavit also attaches material not found elsewhere in the Certified Record (other than in the Affidavit itself, which is reproduced in the Certified Record).

These include journal articles on the Russia-Ukraine war, as well as what appears to be two pages (pp.1,6) of an Application for a Grant dated Sept 30, 2015, an undated “IG Committee Reader Review Form for Chair” and a one-page document titled “SSHRC/CRSH Priority Applications”, also undated. For the most part, these forms are empty. [ 10 ] There is, therefore, at least some material in the April 7 Oleynik Affidavit which was not before the Adjudicator.

I also agree with counsel for the University that any permissible material duplicated in the Certified Record of Proceedings need not be also included in any Affidavit of Dr. Oleynik. [ 11 ] As for the parts of the Affidavit that are not duplicates, Dr. Oleynik must bring a proper application for new evidence – he cannot simply file an Affidavit for use in the judicial review without going through that process. The most efficient way to do this will be to strike the April 7 Oleynik Affidavit and require a proper application if Dr.

Oleynik wishes to pursue that. [ 12 ] The rationale for this requirement on a judicial review lies in the nature of the proceeding. It is not a re-hearing but rather a review of the decision that was made and of the decision-making process of the initial adjudicator. This can only be done where the record before the reviewing court is the same as the record before the initial adjudicator. There are very few exceptions to the rule, none of which apply here; Thurm v.

Alberta Labour Relations Board , 2018 ABQB 300 at paras.6-13. [ 13 ] I also refer to the words of Watson JA in Edmonton Police Service v Alberta (Information & Privacy Commissioner) , 2021 ABCA 428 at para.19: The [respondent’s] concern about fresh evidence and new issues being raised for the first time on judicial review is not a mere technicality.

To permit fresh or new evidence on judicial review as to the merits of the decision under review where the decider did not have that evidence, and to permit new issues on judicial review, works against the concept of judicial review: see eg Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 at paras 22–28 , [2011] 3 SCR 654 ; Connolly v Canada (Attorney General), 2014 FCA 294 at para 6 , 466 NR 44 ; Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2014 BCSC 568 at paras 113–118 , 82 Admin LR (5th) 117 , affirmed without discussion of this issue 2015 BCCA

352 , 387 DLR (4th) 10 , affirmed again 2017 SCC 54 at paras 83–86 on an analogous point, [2017] 2 SCR 386 ; Fraser Mills Properties Ltd. v Coquitlam (City), 2018 BCCA 328 at para 37 , 425 DLR (4th) 154 . [ 14 ] Unless R 3.22(2)(b.1) applies – which I address below – Dr. Oleynik must bring his own application to introduce new evidence at the judicial review. Rule 3.22(2)(b.1) [ 15 ] Rule 3.22(2)(b.1) does not apply to assist Dr. Oleynik.

For that subrule to apply, as he argues it does, his originating application would need to be for “relief other than an order in the nature of certiorari or an order to set aside a decision or act”. His originating application is for precisely that relief. He seeks (from paragraphs 22 and 23 of his Originating Application): 22. An Order stating that responsive records shall be disclosed in the public interest, pursuant to

Section 32 of the FOIPP (which would require setting aside the decision of the Adjudicator, found at Tab 2 of the Certified Record of Proceedings); or 23. In the alternative, an Order in the nature of certiorari to quash or set aside Order F2022-18, remitting it to the other Adjudicator of the Office of the Information and Privacy Commissioner. Conclusion [ 16 ] Accordingly, Dr. Oleynik’s Affidavit affirmed March 30, 2022, and filed April 7, 2022, is struck, and will be expunged from the court file and from the Certified Record of Proceedings.

Because his Brief referenced the Affidavit, which is no longer part of the court record, his Brief filed June 21, 2022, is struck, and shall also be expunged from the court file. [ 17 ] Dr. Oleynik is free to file another Brief. If the parties cannot agree on his filing deadline to do so and on the filing deadline for response Briefs, and if the appropriate Court Coordinator does not provide filing deadlines, they can contact me with their scheduled hearing date, and I will provide those. [ 18 ] Costs of this application on

Schedule “C”, column 1 are awarded to the University, payable by Dr. Oleynik, but payment of those costs is deferred until the disposition of this matter, whether by agreement, abandonment, or adjudication. [ 19 ] Counsel for the University shall draft this Order. Rule 9.4(2)(

c) applies. Heard on the 14 th day of December, 2022. Dated at the City of Calgary, Alberta this 25 th day of January, 2023. M.H. Hollins J.C.Q.B.A. Appearances: Dr. Anton Oleynik for himself J.M. Ward for the Governors of the University of Calgary J. Harker For the Office of the Information and Privacy Commissioner