Anton Oleynik Appellant And: Gary Kachanoski, The President v. Vice-Chancellor of Memorial University of Newfoundland, 2021 NLSC 52

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLSC 52 Date : April 14, 2021 Docket : 202001G1408 Between: Anton Oleynik Appellant And: Gary Kachanoski, The President and Vice-Chancellor of 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 Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 24, 25; March 5 and 17, 2021 ( virtual )

Summary: Anton Oleynik appealed the decision of Memorial University to deny him access to requested records. Memorial refused access, relying on the exception to disclosure in

section 40 of the Access to Information and Protection of Privacy Act, 2015 on disclosure harmful to personal privacy. Oleynik raised that section 33(3) of the Act gives him entitlement to all relevant information in respect to a workplace investigation. The Court held:

Certain of the redacted information is “personal information” about Oleynik, and Memorial University shall provide Oleynik access to such redactions on the specified terms and conditions set out in the Court’s Order. Oleynik has no right of access to the other redacted information under either

section 40 or section 33(3) of the Act . There was no order as to costs. Appearances: Anton Oleynik Appearing on his own behalf Koren Thomson and John Samms Appearing on behalf of the Respondent Andrew A. Fitzgerald Appearing on behalf of the Intervenor Authorities Cited: CASES CONSIDERED: F.H. v. McDougall , 2008 SCC 53 ; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 ; Newfoundland and Labrador v. Newfoundland and Labrador Teachers' Association , 2018 NLCA 54 ; French v.

Dalhousie University , 2002 NSSC 22 STATUTES CONSIDERED: Access to Information and Protection of Privacy Act, 2015 , S.N.L. 2015, c. A-1.2 TEXTS CONSIDERED: Clyde K. Wells, Doug Letto & Jennifer Stoddart Report of the 2014 Statutory Review of the Access to Information and Protection of Privacy Act Newfoundland and Labrador , Full Report vol. I (St. John’s: Queen’s Printer, 2015); Excell Agent Service Canada Co. v. International Union of Operating Engineers, Local No. 882 , BCLRB No.

B171/2003 (22 May, 2003), online: British Columbia Labour Relations Board <http://www.lrb.bc.ca> REASONS FOR JUDGMENT Noel, J. : OVERVIEW [ 1 ] Anton Oleynik (“Oleynik”) is appealing the decision of the public body to deny him access to requested records. It is a direct appeal to this Court pursuant to

section 52 of the Access to Information and Protection of Privacy Act, 2015 , S.N.L. 2015, c. A-1.2 (the “ Act ”). He seeks an order granting him access to redacted records produced to him in response to an access to information request filed with Memorial University (“Memorial”). [ 2 ] The records in question relate to an incident between Oleynik and one of his colleagues that led to the Colleague making a complaint under Memorial’s Respectful Workplace Policy. A workplace investigation ensued resulting in a finding of harassment and retaliation on Oleynik’s part.

Memorial refused to disclose the redacted information because the disclosure would be an unreasonable invasion of the Colleague’s personal privacy exception under

section 40 of the Act . Memorial also maintains the records were not relevant to the workplace investigation. [ 3 ] The discipline imposed on Oleynik from the findings of the workplace investigation is subject to grievances initiated by Oleynik’s Faculty Association. Oleynik claims procedural fairness to know the case against him, and convince the Faculty Association to pursue these and other grievances, justifies full disclosure. [ 4 ] For the reasons that follow, I am granting Oleynik access to certain of the redacted records on terms and conditions specified in my Order, and denying access to others. background

[ 5 ] Oleynik’s access to information request sought access to the following: 1. Records of R. Kelly from the Office of Faculty Relations hand delivered to the IAP Office on March 6, 2019; 2. The attachment Cadigan response 0150-01-38-19 c.pdf to Email correspondence from S. Cadigan to K. Stapleton dated March 6, 2019; and 3. Documents from T. Allen delivered via internal mail to the IAP Office on March 14, 2019. Possible location: the IAP Office [ 6 ] Oleynik also sought the release of digital records (emails) in native (electronic) format. Memorial refused to provide access to the records in native format.

This was one of Oleynik’s grounds of appeal; however, during the Appeal hearing he asked that this issue be deferred until the Court has the opportunity to make determinations in other case-managed proceedings, among them, the admissibility of expert evidence on the alleged alteration of requested records. [ 7 ] Memorial relied upon two exceptions to disclosure under the Act in refusing access to the redacted information: section 29(1) (a) “Policy advice or recommendations” and section 40(1) “Disclosure harmful to personal privacy.” In the Appeal, Memorial abandoned reliance on

section 29 and relies entirely on

section 40 in defense of the redactions made. [ 8 ] Oleynik in his submissions raised that section 33(3) of the Act gives him entitlement to the records as they pertain to “all relevant information” in respect to a workplace investigation. [ 9 ] The Intervenor is the Information and Privacy Commissioner (the “Commissioner”). The Commissioner filed a Notice of Intervention pursuant to section 56(3) of the Act .

The Commissioner’s submissions are intended to assist the Court in conducting the exercise of statutory review of the pertinent provisions of the Act . [ 10 ] Memorial retained Kimberly Burridge (the “Investigator”) to investigate the complaint a Colleague made against Oleynik. Her investigation found: (1) that Oleynik’s actions constituted harassment; and

(2) Oleynik’s actions constituted retaliation against the Colleague for her participation in an earlier respectful workplace complaint brought by members of the Department of Sociology. The Investigator was not provided with the redacted records for her investigation. The Redacted Records [ 11 ] The redacted records consists of separate email threads between the Colleague to the Associate Vice-President (Academic), Dr. Sean Cadigan on September 28, 2018, and later on the same date between the Colleague and the Associate Professor and [former] Interim Head of the Department of Sociology, Dr. Tana Allen.

The final redacted email in the thread is from Allen to the Colleague on October 4, 2018. [ 12 ] Memorial filed the Record with the Court redacting the information it refused to release to Oleynik, and applied for a Sealing Order on the Record containing the records without the redactions. After appropriate notice to the media and public, on February 25, 2021, I granted the Sealing Order. I have had the benefit of reviewing all the records in an unredacted form. [ 13 ] In the email to Cadigan, the Colleague described an incident with Oleynik: “The hallway itself is more than 8’ wide, yet when Dr.

Oleynik walked past me, he made contact with my person, brushing against me as he walked by.” The redactions occur in the next paragraph of the email (at page 24 of the Sealed Record). Similarly, in the first email in the thread with Allen, the Colleague describes the incident with Oleynik, and the redactions pertain to the same words used in the email to Cadigan (at page 39 of the Sealed Record). I refer to these as “Email A” and “Email B,” respectively. [ 14 ] The remainder of the redacted information is in the email thread between Allen and the Colleague (appearing at pages 37, 38 and 40 of the Sealed Record).

I will refer to this as the “Other Redacted Information [1] .” issues [ 15 ] There are three issues for me to decide on this Appeal: 1. Is Memorial authorized or required to refuse access to the redacted information pursuant to

section 40 of the Act ? 2. Is section 33(3) of the Act applicable to determination of the Appeal? 3. What is the appropriate Order under

section 60 for disposition of the Appeal? Issue 1:

Section 40 – Disclosure harmful to personal privacy [ 16 ] The conduct of the Appeal proceeds under section 59(1) as “a new matter.” The burden of proof is on the public body to prove that Oleynik has no right of access: section 59(2). Since this is a civil case, there is only one standard of proof and that is proof on a balance of probabilities : F.H. v. McDougall , 2008 SCC 53 at para. 49 . [ 17 ] Unlike a judicial review standard, the Court is not required to show deference to the public body’s decision. I am to apply

appellate standards of review to the public body’s decision. Where I am considering questions of law on statutory

interpretation and the scope of Memorial’s decision-making authority to deny Oleynik access to information, the applicable standard of review is correction: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 at para. 37 . [ 18 ] The

interpretation of

section 40 turns on the meaning of “personal information.” It involves a balancing of Oleynik’s right of access to information about him with the protection of the Colleague’s privacy interest to her own thoughts and feelings. Memorial maintains the redacted information is not personal information “about” the requester, Oleynik, but about the other individual, the Colleague. Email A and Email B [ 19 ] I find that the redacted information in Email A and Email B is “personal information” about Oleynik.

Nevertheless, the Colleague provided the information about Oleynik to her professional colleagues in confidence, and therefore she has a privacy interest at stake.

I will fashion a remedy that limits the disclosure of the information to the extent necessary for Oleynik to deal with his employment grievances, while minimizing the Colleague’s privacy invasion and protecting the her privacy interests. [ 20 ] On the other hand, I find the Other Redacted Information is not expressing views and opinions about Oleynik, but expresses the contemplation of the actions of Allen and the Colleague about their own thoughts and views. [ 21 ] Memorial relies on section 40(1) and says it is obligated to refuse access to the “personal information” of the Colleague because its disclosure would constitute an unreasonable invasion of her privacy.

Section 40(1) states “a public body shall refuse to disclose personal information to an applicant where the disclosure would be an unreasonable invasion of a third party's personal privacy.” The pertinent definition of personal information is set out in

section 2(u)(viii)(ix): 2(u) “ personal information ” means recorded information about an identifiable individual, including (viii) the opinions of a person about the individual, and (ix) the individual’s personal views or opinions, except where they are about someone else; [Emphasis added] [ 22 ] Section 40(2)(

a) deems that disclosure of personal information is not an unreasonable invasion of privacy where “the applicant is the individual to whom the information relates.” It is not an unreasonable invasion of the Colleague’s personal privacy if the information relates to Oleynik.

The redacted information in Email A and Email B states the Colleague’s views or opinions about Oleynik, and Oleynik is the individual to whom the information relates. [ 23 ] Since I have determined the redacted personal information falls within section 40(2), there is no need to consider the presumption that arises in section 40(4) where disclosure would constitute an unreasonable invasion of a third party’s personal privacy.

And likewise, it is not necessary to consider all the relevant circumstances and factors identified in section 40(5) on whether disclosure constitutes an unreasonable invasion. [ 24 ] The contextual approach to statutory

interpretation requires that I recognize that the purpose of the Act is achieved by giving individuals a right of access to personal information about themselves, at section 3(2)(b). Oleynik is entitled, within the limits of my order, to access to information about him. [ 25 ] I accept the submissions of the Commissioner on the guidance the Clyde K. Wells, Doug Letto & Jennifer Stoddart Report of the 2014 Statutory Review of the Access to Information and Protection of Privacy Act Newfoundland and Labrador , Full Report vol. I (St. John’s: Queen’s Printer, 2015) (“ Wells Report ”) provides on the

interpretation of the redactions in issue. The Wells Report stated (at page 47): “Memorial University wished to have opinions of individuals about others revert to the pre-Bill 29 status, where personal opinions should be considered the personal information of both the person who holds the opinion and the person the opinion is about.” The Wells Report rejected Memorial’s submission to return to the pre-Bill 29 definition that did not include the current wording of

section 2(u)(ix) “except where they are about someone else.” [ 26 ] Our Court of Appeal has recognized the significance of the Wells Report when the Court is interpreting the Act : Newfoundland and Labrador v. Newfoundland and Labrador Teachers' Association , 2018 NLCA 54 at paragraphs 42 and 43 . [ 27 ] The intention of the Legislature was for an individual’s personal views and opinions about someone else to be the personal information of the person the views are about. The Colleague’s comments in Email A and Email B are expressions about Oleynik, so it is Oleynik’s personal information. [ 28 ] My

interpretation of the definition of personal information in the Act is consistent with the case law authorities. The Nova Scotia provision at issue in French v. Dalhousie University , 2002 NSSC 22 , is similar to the definition of personal information in our legislation. The court in that case recognized, as do I, the inherent clash that arises within a legislative scheme that attempts to balance access to information and protection of privacy. Moir, J stated (at para. 7): [17] … The clash arises where one person addresses a public body about another.

The person who is the subject of the communication may have an interest in knowing what information was given, and the person also has a privacy interest at stake if others seek access to a record of the communication. The person who provided the information may also have a privacy issue at stake, where, for example, the information was provided in confidence. The interests of the two are mutually exclusive. …

[ 29 ] The effect of

section 2(u)(ix) is to come down on the side of the person spoken about where the information is a personal view or opinion about that person. [ 30 ] In giving meaning to the terms “views” and “opinions.” I take guidance from Excell Agent Service Canada Co. v. International Union of Operating Engineers, Local No. 882 , BCLRB No. B171/2003 (22 May, 2003), online: British Columbia Labour Relations Board <http://www.lrb.bc.ca>. The common element in all the dictionary

definitions of “views” is that views are ideas, thoughts, beliefs, judgment, and opinions. I concur with the comment (at para. 41): “The notion of a ‘view’ does not include acts taken in furtherance of those views.” Other Redacted Information [ 31 ] The Other Redacted Information is not the personal information of Oleynik. The comments are not expressing views or opinions about Oleynik. I find the information pertains to a course of action in furtherance of the thoughts or views of Allen and the Colleague.

It is information that the Colleague and Allen intended to be confidential, and thus there is an expectation and right of privacy to it. The violation that would ensue is the harm that section 40(1) is intended to guard against. [ 32 ] It follows that section 42(2)(

a) is not engaged. The information falls within 40(4)(g)(

i) as it contains personal information in conjunction with the Colleague and/or Allen’s name. As such, there is a presumption that its disclosure would constitute an unreasonable invasion of third-party privacy. [ 33 ] I now turn to whether the presumption can be rebutted when considering the factors and “all the relevant circumstances” in section 40(5).

Disclosure of this information is not going to further public scrutiny of Memorial: 40(5)(a); nor will it facilitate democracy in other ways as is the primary purpose of the Act : section 3(1) (c). [ 34 ] This is not information that is relevant to a fair determination of Oleynik’s rights at this stage: 40(5)(c).

If the Colleague follows through in processing of the information and acts upon her thoughts and views, then Oleynik’s right of access may subsequently be engaged. [ 35 ] It is reasonable in the current circumstances to infer that disclosure of the information would make the Colleague feel exposed unfairly to harm: 40(5)(e); and would reveal information that was supplied in confidence: 40(5)(f). [ 36 ] Memorial has met the burden under 59(2) in establishing Oleynik has no right of access to the Other Redacted Information under

section 40 . Issue 2: Section 33(3) – Information from a workplace investigation [ 37 ] Having found Oleynik has a right of access to Email A and Email B under section 40(2)(a), there is no need for the Court to make a determination under section 33(3) that the two subject Emails contain “all relevant information created or gathered for the purpose of a workplace investigation” in subsection (2).

As for the Other Redacted Information, I am satisfied Memorial has established on a balance of probabilities that the Information is not relevant to the workplace investigation. [ 38 ] The Investigator did not gather or consider the redacted records in rendering her report on the workplace investigation. I am unable to determine whether the redactions in Email A and Email B were nevertheless “created” for the workplace investigation, even though the Investigator was not provided with them.

Since Oleynik will now have access to the redactions in these Emails, it will be for him and his representatives to determine what, if any, relevance they may bring to bear on his workplace grievances. The Other Redacted Information was neither created nor gathered for the workplace investigation, and Memorial’s decision to deny him access is justified. Issue 3:

Section 60 – Disposition of the Appeal [ 39 ] Where the Court determines that the public body is not authorized or required to refuse access, Section 60(1)(

c) gives the Court authority to (

i) order access; and (ii) make an order that the Court considers appropriate. [ 40 ] I am ordering that the Unredacted Records remain subject to the Sealing Order. Memorial shall provide Oleynik access to Email A and Email B without the redactions on the following terms and conditions: a. The Unredacted Records be maintained in confidence by Oleynik and his representatives for the sole purpose of dealing with Oleynik’s workplace grievances; b.

Oleynik or his representatives shall not disclose, disseminate, or discuss the Unredacted Records for any other purpose than in connection with the workplace grievances, without further order of the Court; c. Following conclusion of the workplace grievances and all appeals connected thereto, the Unredacted Records are to be destroyed. [ 41 ] I further order Oleynik has no entitlement to access to the Other Redacted Information. costs [ 42 ] I am making no order as to costs. Memorial was reasonable to redact the information in Email A and Email B for the protection of the Colleague’s privacy.

There was no prior guidance from our Court on the

interpretation of

section 40. Memorial met with success in defending its refusal to provide access to the Other Redacted Information. [ 43 ] During the hearing I rendered oral decisions on Oleynik seeking leave to cross-examine Memorial’s two affiants ( Oleynik v. Kachanoski , 2021 NLSC 31 ), and disagreement between the parties on the order of submissions ( Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLSC 32 ). I refused Oleynik leave to cross-examine. I permitted Oleynik to make submissions first,

followed by Memorial and the Commissioner with Oleynik and Memorial having a limited right of reply on new matters of law. I ordered costs in the cause and gave leave to the parties to speak to costs in final submissions on the Appeal. [ 44 ] I have decided Oleynik was within his right to seek leave to seek to cross-examine, even though I denied him; and the matter of order of submissions on a statutory appeal under the Act , where the burden is on the public body to justify the refusal of access, had not previously been decided by the Court.

In all the circumstances, it is appropriate to exercise my discretion to make no order as to costs. Conclusion [ 45 ] I conclude that the redacted information in Email A and Email B is “personal information” about Oleynik. Memorial is to give Oleynik access to such Emails without the redactions on the terms and conditions specified in my Order above at paragraph 40. [ 46 ] Oleynik has no right of access to the Other Redacted Information under either

section 40 or section 33(3) of the Act . [ 47 ] Counsel for Memorial shall prepare and file the Order accordingly. _____________________________ GLEN L.C. NOEL Justice