Anton Oleynik Applicant And: Memorial UNIVERSITY of Newfoundland v. LABRADOR, 2021 NLSC 31

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLSC 31 Date : March 9, 2021 Docket : 202001G1408 Between: Anton Oleynik Applicant And: Memorial UNIVERSITY of Newfoundland AND LABRADOR Respondent And: MICHAEL HARVEY, in his capacity as THE INFORMATION AND PRIVACY COMMISSIONER OF NEWFOUNDLAND AND LABRADOR Intervenor Before: Justice Glen L.C. Noel Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 25, 2021 ( virtual ) Date of Oral Judgment : February 26, 2021 ( virtual )

Appearances: Anton Oleynik Appearing on his own behalf as Applicant Koren Thomson and John Samms Appearing on behalf of the Respondent Andrew Fitzgerald Appearing on behalf of the Intervenor Authorities Cited: CASES CONSIDERED: Marco Limited v. Newfoundland Processing (1995), (NL SC), 130 Nfld. & P.E.I.R. 317,405 A.P.R. 317 (Nfld. S.C.(T.D.)); Tucker v. Unknown Person, 2014 NLCA 36 STATUTES CONSIDERED: Access to Information and Protection of Privacy Act, 2015, S.N.L. 2015, c.

A-1.2 REASONS FOR JUDGMENT Noel, J.: [1] Oleynik seeks leave to cross-examine Rosemary Thorne and Kimberly Burridge on their Affidavits filed in the withinproceeding. The Respondent opposes cross-examination of affiants on its Sealing Application and Oleynik’s Appeal. [2] Oleynik alleges in paragraph 17 of the Appellant’s Additional Brief filed on 4 February 2021 that Ms. Thorne and Ms.Burridge “are not speaking [the] truth upon particular points.” He has identified in his Brief and comprehensive oral submissions thespecific areas he seeks to raise on cross-examination. [3] They are as follows: 1.

The scope of authority of Ms. Thorne, as noted in paragraphs 17, 24, 26, 27 through 29 of his Brief; 2. Challenge to the completeness of Ms. Burridge’s investigative file, specifically paragraphs 18, 19, 25, 31 through 33; 3. The email thread subject to redaction, as noted in paragraph 30, and explored more extensively in his oral submissions withreference to Tabs 13 and 29 in the updated record of 201901G7928 and the Affidavits of Tara Allen and Ms. Burridge filed therein. [4] There is a dispute between the parties on whether I apply Marco Limited v.

Newfoundland Processing (1995), (NL SC), 130 Nfld. & P.E.I.R. 317, 405 A.P.R. 317 (Nfld. S.C.(T.D.)) or Tucker v. Unknown Person, 2014 NLCA 36, as theappropriate test to allow for cross-examination. Oleynik argues Marco is the test to be applied, and the Respondent says it is Tucker. [5] Marco is an often-cited authority of Justice Green (as he then was) on

summary trial proceedings. Green, J. stated: 76 … 6. The opportunity to avail of cross-examination is in the discretion of the court so as to ensure promotion of the philosophy of the rule ofproviding expeditious and inexpensive paper trials. Cross-examination would likely be appropriate where: (

a) there is some disputed issue disclosed on conflicting affidavits, the resolution of which is necessary to the ultimate outcome of thecase; (

b) even though the applicant for cross-examination has not filed a conflicting affidavit, the purpose of cross-examination is to addressinformation that is not within the knowledge of the cross-examiner's own deponents, provided the court can be convinced from othersources (eg. the pleadings), that there is a substantive point of difference between the parties;

(

c) there is other good reason to test the veracity of a statement that is directly related to a material fact in dispute. Unlike cross-examination on a full trial, cross-examination on affidavits would not generally be permissible for the purpose of attackingcredibility generally. If that is necessary, then that is probably a good indication that the case should go to trial. [6] The last two sentences of the quoted paragraph refer specifically to the test on a

summary trial application; whether thereshould be cross-examination at that stage or the matter proceed to trial. [7] I will now refer to the test on which the Respondent relies. White, J.A., in Tucker stated: 27 In determining whether to allow cross-examination, there is some judicial guidance as to what a court should consider: a. Whether the facts in the affidavit are in issue (see Royal Bank v. Jones, 2000 BCSC 520 (B.C. S.C.) at para. 42; Brown v. Garrison(1967), (BC CA), 63 W.W.R. 248 (B.C. C.A.) at p. 250); b.

Whether cross-examination is necessary to challenge the facts deposed to in the affidavit (see Beanland v. Beanland (1997), (NL CA), 151 Nfld. & P.E.I.R. 51 (Nfld. C.A.) at para. 35; John Doe v. Roman Catholic Episcopal Corp. of St. John's,2004 NLCA 27, 237 Nfld. & P.E.I.R. 56 (N.L. C.A.) at para. 19; and /or c. Whether the affidavit is contentious or the statements deposed to are in dispute (R. v. Dean [1996 CarswellBC 1969 (B.C. C.A.)], at para. 9; Cadboro Investments Ltd. v. Canada West Insurance Co. (1987), (BC CA), 19 B.C.L.R. (2d)352 (B.C. C.A.) at para. 22; General Electric Company v.

United States, 1980 ABCA 316 (Alta. C.A.) at para. 6. [8] The threshold test for admission of evidence in any proceeding is relevance and necessity. The identified areas of cross-examination must be relevant and necessary for my determination of the issues Dr. Oleynik raises in his Notice of Appeal. They are asfollows: 1. Memorial withholding information under section 29(1)(a) (Policy Advice or Recommendations) of the Access to Information andProtection of Privacy Act, 2015, S.N.L. 2015, c. A-1.2 (the “ATIPPA”); 2. Withholding under section 40(1) (Disclosure Harmful to Personal Privacy) of the ATIPPA; and 3.

Refusing to release digital records in the native format when responding to requests for an Access to Information in File No. 015-01-54-20. [9] My conclusion is that whether I apply the Marco or Tucker test, there is no relevance or necessity to the grounds Dr.

Oleynikidentified for cross-examination for my determination of the issues on this Appeal. [10] I therefore order there shall be no cross-examination on either the Sealing Application or the Appeal, and the matters proceed tosubmissions, first on the Sealing Application, and then the Appeal. [11] Costs shall be in the cause. _____________________________ Glen L.C. Noel Justice