Anton Oleynik Applicant And: Memorial UNIVERSITY of Newfoundland v. LABRADOR, 2021 NLSC 32

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLSC 32 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 26, 2021 ( virtual ) Date of Oral Judgment : March 5 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: McBreairty v. College of the North Atlantic , 2010 NLTD 28 ; Rideout v. Newfoundland and Labrador (Municipal and Intergovernmental Affairs) , 2018 NLSC 217 ; Moravian Church of Newfoundland & Labrador v. Newfoundland & Labrador , 2005 NLTD 123 ; Newfoundland and Labrador v. Newfoundland and Labrador Teachers’ Association , 2018 NLCA 54 ; Corporate Express Canada Inc. v.

Memorial University of Newfoundland, 2015 NLCA 5 ; Oleynik v. Kachanoski , 2021 NLSC 4 STATUTES CONSIDERED: Access to Information and Protection of Privacy Act, 2015 , S.N.L. 2015, c. A-1.2 TEXTS CONSIDERED: Canadian Judicial Council, Statement of Principles on Self-represented Litigants and Accused Persons (Ottawa: CJC, 2006) REASONS FOR JUDGMENT Noel, J. : ISSUE [ 1 ] The issue before me is what party goes first in oral submissions on a statutory appeal under the Access to Information and Protection of Privacy Act, 2015 , S.N.L. 2015, c. A-1.2 (the “ ATIPPA ” ). appellant’s position [ 2 ] Dr.

Oleynik takes the position that this is his ATIPPA Appeal, and therefore gets to go first. He points in his written submissions to two ATIPPA appeals where the court considered the submissions of the Appellant/Requestor first in order. In McBreairty v. College of the North Atlantic , 2010 NLTD 28 , Seaborn, J. in his decision at paragraph 16 considered Ms. McBreairty’s submissions first. There is nothing in the decision that allows me to conclude who went first in making submissions to the court; or that the order of submissions was even in issue. [ 3 ] Secondly, Dr. Oleynik relies upon Rideout v.

Newfoundland and Labrador (Municipal and Intergovernmental Affairs) , 2018 NLSC 217 , wherein Furey, J. dealt with the submissions of Ms. Rideout and then the respondent and intervenor. Again, it is not clear from the decision whether oral submissions were first made by Ms. Rideout as the appellant followed by the respondent, or whether that is simply the manner in which Furey, J. dealt with the submission in his written reasons. There was reference in paragraph 26 that the burden of proof was on the respondent minister to establish Ms. Rideout had no right of access to the exempt records.

There is no indication that the order of oral submissions was in issue. [ 4 ] Dr. Oleynik further submits he is a self-represented Appellant, and his procedural rights should be protected with particular care, according to the Canadian Judicial Council, Statement of Principles on Self-represented Litigants and Accused Persons (Ottawa: CJC, 2006) as endorsed by the Supreme Court of Canada. He notes the Principles require self-reps to be afforded, to the extent possible, “informality and timeliness of case resolution” (at page 2).

He argues the position advanced by the Respondent and endorsed by the Intervenor caused the loss of a full day of hearing, and the Court’s timely resolution of the Appeal on its merits. Finally, he pleads that I apply an even-ended application of the Principles. respondent’s position [ 5 ] The Respondent argues that Memorial University, being the party that bears the burden of proof, is entitled to present argument first and is the party with the right of reply. Ms.

Thomson states fairness and practicality dictate that Memorial go first, and the Appellant is limited to a response. [ 6 ] The leading case put forth on the burden of proof and the obligation to begin is Moravian Church of Newfoundland & Labrador v. Newfoundland & Labrador , 2005 NLTD 123 . Chief Justice Green (as he then was) in answer to the question of when is it appropriate for the court to order that a defendant proceed to give its evidence at trial before the evidence of the plaintiff, pointed out the following:

1. The nature of the issues raised by the pleadings may affect the burden of proof on particular issues and place that burden on a defendant (at para. 37). 2. On an issue where the Defendant has the legal burden of proof, “it might be appropriate for the defendant to proceed first” (at para. 45). 3. It boils down to considerations of trial convenience and fairness (at para. 51). [ 7 ] In Moravian Church , the applicant claimed that the government wrongfully took large tracks of the church’s lands without notice and compensation.

Green, C.J. was not satisfied that the plaintiff church made out the case for requiring the defendant government to present its evidence first. [ 8 ] The Respondent relies upon Rule 42.04(3), “[w]here the burden of proof of all the issues in a proceeding lies on a defendant, rule 42.04(2) shall have effect as if the name of such defendant were the first party named in the title to the proceeding.” [ 9 ] Sections 43(1) and 59(2) of the ATIPPA place the burden in refusing access to a record or part of a record on the public body to prove the requestor/appellant has no right of access to the record in dispute. [ 10 ] Unlike a typical statutory appeal, the appeal under the ATIPPA is conducted, as per sections 59(1) , as a new matter without consideration of administrative law standards of review: Newfoundland and Labrador v.

Newfoundland and Labrador Teachers’ Association , 2018 NLCA 54 , at para. 6 . The applicable burden of proof is the balance of probabilities: Corporate Express Canada Inc. v. Memorial University of Newfoundland, 2015 NLCA 52 , at para. 8 . [ 11 ] The Respondent submits it must go first so the requestor can know the case to meet in order to defeat or refute the merits of the decision to refuse access. INTERVENOR’S position [ 12 ] The Intervenor essentially supports the position of the Respondent for the reasons articulated.

It states the public body has knowledge of the records and must defend its decision to deny access. analysis [ 13 ] It is interesting that neither the Respondent nor the Intervenor has put before the Court one case that bears directly on the issue of what party goes first in oral submissions on an ATIPPA appeal. [ 14 ] I note Moravian Church dealt with who was to go first in the presentation of evidence at trial. I also take from Green, C.J.’s comments that it is in the discretionary power of the trial judge based upon trial convenience and fairness to decide upon the order of presentation of evidence.

In this ATIPPA Appeal, we are not dealing with the presentation of evidence. The evidence is already before the Court in the form of the Record and the Sealed Record. I have already ruled that the Appellant is not permitted to cross-examine the Respondent’s affiants on this Appeal. There is no further evidence to present. The parties filed detailed written Briefs on the Appeal. The only issue is the order of presentation of arguments. [ 15 ] A judge sitting on appeals or judicial review, as I have stated in a previous decision in the 201901G5833 matter, Oleynik v.

Kachanoski , 2021 NLSC 4 (at para. 39 ), has ultimate control of the proceedings. It would be contrary to my ability to maintain control of the proceedings if there is a hard and fast rule that obligates and ties my hands in the presentation of argument.

The order of submissions in no way changes the onus and burden of proof upon the public body to justify the refusal to release. [ 16 ] I therefore find there is no binding statutory provision, rule, or judicial authority mandating or entitling the public body go first in oral submissions. [ 17 ] I am exercising my discretion to allow the Appellant to go first since I have questions I need to address with him to understand the specifics of the relief he is seeking on this Appeal. I have confusion over his Notice of Appeal and what he is seeking in his written submissions.

Allowing him to go first serves both the functions of practicality and fairness for resolution of the Appeal issues. [ 18 ] As for the express concern about the right of a reply, Rule 42.04(2) gives both the Appellant and the Respondent a reply “on new points of law” raised in the submissions. The Intervenor, as the last party presenting, will have no right of reply unless I otherwise direct. [ 19 ] Costs in this matter shall be in the cause, and the parties may speak to costs in their submissions on the Appeal. _____________________________ Glen L.C. Noel Justice