Town of Lewisporte Applicant And: Information v. Privacy Commissioner of Newfoundland and Labrador, 2022 NLSC 130

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Lewisporte (Town) v. Newfoundland and Labrador (Information and Privacy Commissioner) , 2022 NLSC 130 Date : August 17, 2022 Docket : 202101G3755 In The Matter of an application of the Town of Lewisporte under section 50(2) of the Access to Information and Protection of Privacy Act , 2015 S.N.L. 2015, c.

A-1.2 (“ ATIPPA ”) Between: Town of Lewisporte Applicant And: Information and Privacy Commissioner of Newfoundland and Labrador Intervenor Restriction on Publication: This matter is subject to a sealing order made by Justice O’Brien filed on January 31, 2022. Details of the order may be obtained from the Registry of the Court at 309 Duckworth Street, St. John’s, Newfoundland and Labrador. Before: Justice Katherine O'Brien Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: December 7, 2021; May 16, 2022

Summary: A former employee of the Town sought disclosure under ATIPPA of a workplace investigation report of which he was the subject. The Town applied to the Court for a declaration that it did not have to comply with the Information and Privacy Commissioner’s recommendation that it release the report to the employee.

The Court found that the report was not subject to exceptions to access under ATIPPA for: solicitor-client privilege, litigation privilege,or disclosure harmful to an individual. The Court found that the ATIPPA exception to access for disclosure harmful to personal privacydid apply. The Court ordered that information that qualified for this exception be redacted from the report before it is released to theemployee. Appearances: Laura A. Brocklehurst Appearing on behalf of the Applicant Andrew A. Fitzgerald, QC Appearing on behalf of the Intervenor Authorities Cited: CASES CONSIDERED: Newfoundland and Labrador v.

Newfoundland and Labrador Teachers’ Association, 2018 NLCA 54; Oleynikv. Memorial University of Newfoundland and Labrador, 2021 NLSC 51; Blood Tribe Department of Health v. Canada (PrivacyCommissioner), 2008 SCC 44; Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53; Canada(National Revenue) v. Thompson, 2016 SCC 21; Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31; Gower v. TolkoManitoba Inc., 2001 MBCA 11; Wilson v. Favelle (1994), (BC SC), 26 C.P.C. (3d) 273, 48 A.C.W.S. (3d) 445 (B.C.Master); Slansky v. Canada (Attorney General), 2013 FCA 199; Milsom v.

Toronto Community Housing Corporation, 2021 ONSC 7078;Howard v. London (City), 2015 ONSC 3698; Samson Indian Nation Band v. Canada, (FCA), [1995] 2 F.C. 762;General Accident Assurance Co. v. Chrusz (1999), (ON CA), 45 O.R. (3d) 321, 180 D.L.R. (4th) 241 (ONCA);Newfoundland and Labrador (Information and Privacy Commissioner) v. Eastern Regional Integrated Health Authority, 2015 NLTD(G)183; Merck Frosst Canada Ltd. v.

Canada (Health), 2012 SCC 3; Ontario (Ministry of Community Safety & Correctional Services) v.Ontario (Information & Privacy Commissioner), 2014 SCC 31; Reference re Broadcasting Regulatory Policy CRTC 2010-167 andBroadcasting Order CRTC 2010-168, 2012 SCC 68; Kirby v. Chaulk, 2021 NLSC 86 STATUTES CONSIDERED: Access to Information and Protection of Privacy Act, 2015, S.N.L. 2015, c. A-1.2;

Interpretation Act,1990, R.S.N.L. 1990, c. I-19 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D TEXTS CONSIDERED: Adam Dodek, Solicitor-Client Privilege (Markham: LexisNexis Canada Inc., 2014) REASONS FOR JUDGMENT O'Brien, J: INTRODUCTION [1] The Town of Lewisporte has asked this Court to declare that it does not have to comply with a recommendation made by theInformation and Privacy Commissioner of Newfoundland and Labrador (the “Commissioner”) (ATIPPA[1], s. 50(2)). [2] The application arises from an access to information request by a former Town employee.

The employee requested recordsrelated to a workplace investigation of which he was the subject. The Town denied his request, relying on certain sections of ATIPPAthat permit it to refuse disclosure. The employee complained to the Commissioner. [3] The Commissioner investigated the complaint and issued Report A-2021-26, in which the Commissioner recommended that

the Town release a workplace investigation report (“the Report”) to the employee. The Town filed this application in response. [ 4 ] Sheilagh Murphy, QC, a lawyer, authored the Report. Ms. Murphy was engaged by the Town’s lawyer, Gregory Anthony, to conduct an investigation into alleged breaches of workplace policies by the employee. The Report is the culmination of her work. Ms. Murphy and Mr. Anthony do not work at the same law firm. [ 5 ] “Workplace investigation” is defined in ATIPPA to mean an investigation related to (

i) the conduct of an employee in the workplace, (ii) harassment, or (iii) events related to the interaction of an employee in the public body’s workplace with another employee or a member of the public, which may give rise to progressive discipline or corrective action by the public body employer ( s. 33(1) (c)). [ 6 ] ATIPPA gives a party to a workplace investigation a right of access to “all relevant information created or gathered for the purpose” of it (s. 33(2)). [ 7 ] Ms. Murphy conducted a workplace investigation and the Report was created for the purpose of that investigation.

The employee thus has a prima facie right of access to it under s. 33(2). The Town does not argue otherwise. However, disclosure under ATIPPA is subject to certain exceptions. The Town submits that several of these exceptions apply to the Report: solicitor-client privilege (s. 30(1)(a)), litigation privilege (s. 30(1)(a)), disclosure harmful to an individual (s. 37(1)), and disclosure harmful to personal privacy (s. 40). [ 8 ] To determine whether the Town can rely on one or more of these exceptions to refuse to release the Report, or portions of it, I must decide: 1.

Is the Report solicitor-client privileged because it is a communication in which Ms. Murphy gave legal advice to the Town? 2. If not, is the Report protected by solicitor-client privilege nonetheless because it is within the continuum of communication between the Town and its lawyer, Mr. Anthony, in his provision of legal advice? 3. If not, is the Report protected by litigation privilege that has not expired? 4.

If the Report is generally disclosable, can the Town redact parts of it because disclosure of those parts could reasonably be expected to threaten the safety or mental or physical health of a witness to the investigation? 5. Additionally, can the Town redact parts of the Report because their disclosure would be an unreasonable invasion of a third party’s personal privacy? [ 9 ] To decide these issues, I must review the Commissioner’s decision as a new matter. I am entitled to receive evidence by affidavit (s. 59(1); Newfoundland and Labrador v.

Newfoundland and Labrador Teachers’ Association , 2018 NLCA 54 , at para. 6 ). [ 10 ] The Town has the burden of proof to show on a balance of probabilities that disclosure can be refused (ss. 43(1), 50(5), 59(2)). [ 11 ] I have decided that the Town has not established that the following exceptions to access apply to the Report: solicitor-client privilege (s. 30(1)(a)), litigation privilege (s. 30(1)(a)), and disclosure harmful to an individual (s. 37(1)). I have decided that the exception for disclosure harmful to personal privacy (s. 40) does apply. Issue 1: DID Ms. Murphy give legal advice to the Town?

Solicitor-client privilege and workplace investigations [ 12 ] If solicitor-client privilege is established, it trumps the employee’s right of access to the Report under ATIPPA ( Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLSC 51 ). [ 13 ] The importance of solicitor-client privilege to our justice system cannot be overstated. It is not a mere evidentiary rule; it is a rule of substance and a principle of fundamental justice.

The relationship between solicitor and client is essential to the proper functioning of our legal system because lawyers provide advice to clients within this complex system. Solicitor-client privilege ensures that lawyers and their clients can communicate honestly and candidly. Without the assurance of confidentiality for these communications, the quality of legal advice would be compromised ( Blood Tribe Department of Health v. Canada (Privacy Commissioner) , 2008 SCC 44 , at para. 9 ; Alberta (Information and Privacy Commissioner) v.

University of Calgary , 2016 SCC 53 , at paras. 34 , 38, 39; Canada (National Revenue) v. Thompson , 2016 SCC 21 , at paras. 17 , 18). [ 14 ] Once established, solicitor-client privilege is “jealously guarded” and is only set aside in the “most unusual circumstances” ( Pritchard v. Ontario (Human Rights Commission) , 2004 SCC 31 , at para. 17 ). The onus to establish the privilege is on the party asserting it. To do so, that party must establish: i. A communication between a solicitor, acting in their professional capacity, and a client; ii.

That the communication entails the seeking or giving of legal advice; and iii. That the communication was intended to be confidential. [ 15 ] Not all work that lawyers do entails giving legal advice. The issue of whether solicitor-client privilege applies to workplace investigation reports has been considered numerous times by Canadian courts. The key question is not whether the lawyer was retained to do an investigation but whether the investigation was related to the rendering of legal advice ( Gower v. Tolko Manitoba Inc. , 2001 MBCA 11 , at paras. 39 and 40 ). Analysis of the evidence presented

[16] The Town filed the Report and an affidavit of Ms. Murphy[2] which attests to the Report’s accuracy and briefly sets out thecircumstances under which she prepared it. [17] The Report is marked “Privileged & Confidential”. In the Report, Ms. Murphy refers to herself consistently as an“investigator” and signs the Report by identifying herself as “Investigator”. There is nothing in the Report, nor in Ms. Murphy’saffidavit, to indicate that she considered herself as acting as the Town’s lawyer or as providing legal advice. When she referred to“employer’s counsel”, she was referring to Mr.

Anthony. [18] The Report and her affidavit both indicate that Ms. Murphy was engaged by Mr. Anthony, on behalf of his client, to conduct aninvestigation into allegations of the employee breaching workplace policies. She states that she was asked to make findings of fact as tohis potential involvement in the alleged incident (that triggered the investigation), to apply those facts to the relevant policies, and tomake “any determinations” of whether the employee breached any policies. She states that she was asked not to make anyrecommendations in the Report. [19] Had Ms.

Murphy investigated the allegations and made factual findings only, it would be evident that Ms. Murphy did not givelegal advice. The issue arises because she determined whether workplace policies were breached. Does that determination make herwork legal advice? [20] I reviewed two cases in which courts concluded that a workplace investigation done by a lawyer that merely collected andanalyzed facts to determine if a workplace policy had been breached was not legal advice and did not attract solicitor-client privilege. [21] The first is Wilson v.

Favelle (1994), (BC SC), 26 C.P.C. (3d) 273, 48 A.C.W.S. (3d) 445 (B.C. Master). InWilson, a lawyer was retained to investigate allegations of misconduct by a provincial employee and to provide advice to the Ministry ofHealth. The contract required the lawyer to investigate the allegations and prepare a confidential report which documented the factsrelated to the allegations and provided advice to the Ministry as to any violations of standards of conduct for public service employees. The court held at paragraph 12: … Solicitor/client privilege can only arise in the context of a solicitor and client relationship.

Notwithstanding the statement in theaffidavit of [a representative of the Ministry who characterised the advice as “legal advice”], the independent evidence of [the lawyer’s]hiring is clear that she was hired as an investigator and not as a solicitor to act on behalf of [the provincial government]. Her duties aredescribed as investigating and reporting.

She was asked to “provide advice” but the advice was as to “any violations of standards ofconduct for public service employees”. [22] Wilson has been cited, with apparent approval, by the Manitoba Court of Appeal in Gower and by the Federal Court of Appealin Slansky v. Canada (Attorney General), 2013 FCA 199. Although distinguished in both cases, neither judgment questions Wilson’scorrectness. [23] The second decision in which solicitor-client privilege did not attach to a workplace investigation is Milsom v. TorontoCommunity Housing Corporation, 2021 ONSC 7078.

In Milsom, allegations of improper conduct were made against the plaintiffemployee. The defendant employer retained a law firm (“RT”) to conduct an investigation and complete a report (the “RT Report”). Theemployer also retained a second law firm (“BJ”) in connection with the matter and it too conducted an investigation and prepared a report(the “BJ Report”). At issue before the court was whether the BJ Report and related documents were subject to solicitor-client privilege.The court ultimately concluded that the BJ Report was privileged because it contained legal advice.

This finding was supported by thefact that BJ had been retained to provide “recommendations” to the employer related to Ms. Milsom’s employment. Of interest here,however, is the RT Report, which more closely resembles the work of Ms. Murphy. [24] The defendant in Milsom did not claim solicitor-client privilege over the RT Report. Nevertheless, the court considered the RTReport in its reasons.

RT’s mandate was described in the RT Report as follows: We were asked to make factual findings in relations to the allegations and measure those findings against [the employer’s] HiringPolicy, Conflict of Interest Policy, Procurement Policy and the associated procurement procedures and protocols.

We were advised by[the employer’s general counsel and corporate secretary] that he intended to rely on our report to assist him in providing [the employer]with legal advice in respect of this matter. [My emphasis.] [25] The court commented on the above: “Thus it is clear that RT was not engaged to provide legal advice” (at para. 40). I take fromthis statement that the court did not consider that making factual findings and measuring those against the workplace policies wasproviding legal advice.

Additionally, I understand that “measuring findings against” a policy is the equivalent to assessing whether therehas been any violation of the policy. The court’s comment regarding the RT Report in Milsom is thus consistent with Wilson, althoughWilson was not mentioned by the court. [26] By contrast, in all cases I found in which courts determined that workplace investigation reports prepared by lawyers weresolicitor-client privileged, there was ample evidence that the lawyer did more than merely give an opinion as to whether a workplacepolicy had been breached. [27] The most frequently cited of these is Gower.

In Gower, the defendant employer retained a lawyer to investigate a complaint ofsexual harassment against the plaintiff employee. In upholding the motion judge’s finding that the lawyer’s report was solicitor-clientprivileged, the court of appeal considered a number of contextual factors, including: the lawyer’s retainer letter which referenced givinglegal advice; evidence from the employer that it had retained the lawyer to give legal advice; and the contents of the report itself, whichwas found to contain legal advice. [28] Another example is Howard v. London (City), 2015 ONSC 3698.

In Howard, the motions Master had determined that aninvestigation report was not solicitor-client privileged. Although the Master’s decision was upheld on appeal, his finding with respect toprivilege was not. The appeal court determined that he had failed to consider contextual factors: the employer had retained the lawyer ina privileged and confidential letter; in the letter the employer asked the lawyer to “act” for it and noted that the report would contain

"privileged recommendations, opinions and advice"; and the employer’s request required the lawyer to perform legal analysis in thecourse of his investigation, (at para. 27). [29] The final example I want to reference is Slansky. In Slansky, the Canadian Judicial Council (“CJC”) retained a well-known lawprofessor and lawyer to conduct an investigation and prepare a report regarding allegations of misconduct against a judge.

The majorityof the Federal Court of Appeal found that despite the engagement letter's description of the lawyer's role as a gatherer of facts, the natureof the allegations made it necessary for the lawyer to use his legal skills and knowledge, including his knowledge of criminal law andcriminal trial procedure. It also required the lawyer to analyze decisions of the judge for indications of bias or bad faith, which the courtfound was “uniquely within a lawyer’s competence” (at paras. 98 and 99).

The court accepted CJC’s evidence that it expected the lawyerto provide legal advice and this was supported by the lawyer’s evidence that he also thought he was being hired as a lawyer. His reportwas stamped “Solicitor-Client Privilege” and contained legal analysis and advice. The majority held that solicitor-client privilege wasengaged and the report was privileged, although witness statements collected by the lawyer were not. [30] There are other cases in which workplace investigations by lawyers have been found to be solicitor-client privileged.

In his textSolicitor-Client Privilege (Markham: LexisNexis Canada Inc., 2014), Adam Dodek summarized this area of the law as follows: §4.118 When a lawyer acts as an investigator, it is not clear whether or not the privilege will attach.

The cases are context-dependant onfactors such as the terms of the mandate provided to the lawyer-investigator; the understanding of the parties; the nature of the actualinvestigation conducted by the lawyer-investigator (whether it is only a factual investigation or whether the lawyer provided legal adviceas well; whether the lawyer is providing legal or policy advice); and whether the investigation could have been undertaken by a non-lawyer or specifically required some legal expertise. [31] I do not have before me evidence of the type used in the above-cited cases to ground findings of solicitor-client privilege.

Thereis no evidence that the Town or Ms. Murphy considered her engaged to provide legal advice. She was specifically asked not to make anyrecommendations. There is nothing to suggest that her investigation required legal expertise. Although not determinative, I note that theTown’s letter to the employee refusing to disclose the Report does not claim solicitor-client privilege, only litigation privilege (CourtRecord, Tab 4). [32] Collecting facts and determining if those facts establish a breach of a policy, or some other standard, is work regularly done bynon-lawyer investigators.

Such work typically involves some assessment of credibility and application of a standard by which to measurethe breach. No doubt in some cases, such as Slansky, the assessment requires a lawyer’s specialized skill or experience, however, thereis no evidence to suggest that is the case here. [33] Solicitor-client privilege is a bedrock of our judicial system and must be carefully protected. It is also powerful – creating anear-absolute exemption to general rules of disclosure. Like all powerful tools, it should be used prudently, and should only apply tocommunications properly established to be within its scope.

Normally disclosable workplace investigations should not become non-disclosable, merely because a lawyer was retained to do the work. Otherwise, employers could too easily circumvent the access rightgiven to employees by s. 33(2), rendering the

section meaningless. [34] I find that the Town has not established that Ms. Murphy was acting in her professional capacity as a lawyer when she preparedthe Report nor that it entailed the giving of legal advice. As a result, solicitor-client privilege does not arise from Ms. Murphy’s retainer. Issue 2: is the Report within the continuum of communication of Mr. Anthony’s legal advice? [35] Even if Ms. Murphy did not give legal advice, the Town submits that the Report is part of the “continuum of communication”in which legal advice was sought from and given by Mr. Anthony (or his law firm).

The phrase “continuum of communication” is mostoften cited to the Federal Court’s articulation of solicitor-client privilege in Samson Indian Nation Band v.

Canada, (FCA), [1995] 2 F.C. 762, at paragraph 8: The legal advice privilege protects all communications, written or oral, between a solicitor and a client that are directly related to theseeking, formulating or giving of legal advice; it is not necessary that the communication specifically request or offer advice, as long as itcan be placed within the continuum of communication in which the solicitor tenders advice; it is not confined to telling the client the lawand it includes advice as to what should be done in the relevant legal context. [36] Third party communications can form part of this continuum where the third party serves as a channel of communicationbetween the client and the solicitor, provided that the communication meets the criteria for the existence of the privilege (GeneralAccident Assurance Co. v.

Chrusz (1999), (ON CA), 45 O.R. (3d) 321, 180 D.L.R. (4th) 241 (ONCA), at para. 109). [37] In its written submission, the Town asserts that the Report was the “primary basis” for Mr. Anthony to provide legal advice tothe town and that Mr. Anthony requested the Report to allow him “to make recommendations on how to best proceed forward”. As such,the Town asserts that the Report is under the broad privilege provided by the Town’s initial request to Mr.

Anthony for legal advice inrelation to the employee’s employment. [38] Although I take no issue with the law the Town references, there is no evidence to support the Town’s assertions. As such, Imust consider whether I should accept counsel’s written or oral submissions as evidence. [39] I have already indicated that I am required to hear this application as a new matter and am entitled to receive affidavit evidence(s. 59(1)). Additionally, the practice and procedure that I am to apply is that under the Rules of the Supreme Court, 1986, S.N.L. 1986, c.42, Sch.

D for expedited trials, or such adaptation of those rules that I consider appropriate in the circumstances (s. 57). Expedited trialsare considered by Rule 17A.09, which gives the Court flexibility as to how it can proceed. For example, the Court can order that certainfacts are not in dispute, that evidence be adduced by affidavit, or that the evidence in chief of a witness be given by written statement(Rule 17A.09(1)(c), (

i) and (k)). Any facts ordered not to be in dispute are deemed to be established unless the Court orders otherwise(Rule 17A.09(3)).

[ 40 ] Should this procedural flexibility extend to the Court accepting written or oral submissions of counsel as evidence? I do not believe it should. [ 41 ] Members of the bar are officers of the Court, and take an oath of that office upon their call to the bar. As a result, lawyers are honour-bound to be forthright in their representations to the Court. However, I am not satisfied that this is a sufficient safeguard to ensure the integrity of the information on which the Court bases decisions. Submissions to a court, often called argument, are typically partisan and persuasive presentations of information.

They are an important part of advocacy but they do not have the same assurances of reliability and trustworthiness as information given as evidence, either on the stand or by affidavit. First, the circumstances of the communications are different. There is a solemnity and formality to the taking of evidence that helps ensure its integrity. Second, lawyers cannot be cross-examined on their submissions. Cross-examination is an effective tool for testing reliability and credibility.

Even the possibility that one may be cross-examined on information likely enhances its accuracy. [ 42 ] The ATIPPA procedure allows the Court, at its discretion, to accept agreed facts or documentary evidence without requiring the parties to formally prove them. However, the Town’s written submissions are not agreed facts. The Intervenor did not consent to their admission as fact. The employee did not participate in this application, although he could have intervened (s. 50(4)).

His not doing so may mean that he has forgone certain rights or opportunities, but it should not result in his being deemed to have consented to facts. This is particularly so when those facts are critical to the outcome of the application. [ 43 ] At the oral hearing, in response to my concern about the lack of evidentiary basis, counsel for the Town submitted that the Report and Ms. Murphy’s affidavit contain the facts needed to support a finding that the Report is part of the continuum of Mr. Anthony’s legal advice. Respectfully, I do not agree. That evidence establishes that Mr. Anthony engaged Ms.

Murphy to conduct the investigation on behalf of the Town. It does not address the scope of Mr. Anthony’s retainer, why he requested the Report, how it was used, or by whom. [ 44 ] The adjudication of a claim of solicitor-client privilege is fact-specific and depends on the context and evidence adduced to support it ( General Accident Assurance Co. , at para. 95 ). A lack of evidence of specific context and circumstances may mean that the onus is not met.

As a result, privilege claims may fail because, on an objective assessment, the factor of legal advice purpose has not been established ( Newfoundland and Labrador (Information and Privacy Commissioner) v. Eastern Regional Integrated Health Authority , 2015 NLTD(G) 183, at paras. 34 and 35). [ 45 ] This is such a case. If Ms. Murphy did not give legal advice, merely showing that Mr. Anthony retained her on behalf of the Town is not sufficient to establish that the Report is protected by legal advice communications with Mr. Anthony.

If it were otherwise, a party could claim solicitor-client privilege over a workplace investigation just by retaining the investigator through a lawyer. [ 46 ] As a result, solicitor-client privilege does not arise from the Report being part of the “continuum of communication” in which legal advice was given by Mr. Anthony. ISSUE 3: Is the Report protected by litigation privilege that has not expired? [ 47 ] The purpose of litigation privilege is to provide a protected privacy zone of communication and work in order to facilitate investigation and preparation for litigation.

It extends to communications with third parties. The litigation which establishes the privilege’s boundaries may extend to litigation related to the ‘primary’ litigation.

The privilege expires with the litigation although it may continue if related litigation remains pending or may reasonably be apprehended ( Newfoundland and Labrador (Information and Privacy Commissioner) , at para. 25). [ 48 ] To establish litigation privilege over a document, a party must establish that litigation was in reasonable contemplation at the time the document was prepared and that the dominant purpose for preparing the document was that litigation.

What litigation was contemplated and does it remain active? [ 49 ] In its written submissions, the Town asserted that the dominant purpose of the Report was to deal with the employee’s liability arising from an incident and his subsequent employment status. It acknowledges that the employee’s dispute for severance has been settled and he signed a release in favour of the Town.

Nonetheless, the Town submitted that the employee’s lawyer has stated verbally to the Town’s lawyer that the employee has considered bringing a complaint of harassment against the Town and has threatened litigation in relation to breach of privacy. [ 50 ] After the Intervenor pointed out in its written submission that the Town had advanced no evidence to support the above assertions, the Town filed email correspondence. I need not review the emails in detail. They are not current.

They date from just after the employee signed the release and concerned him wanting to retrieve personal files and items from his former office. His lawyer stated that if the Town continued to refuse the employee’s access to his personal and private material, he may take legal action for breach of privacy. That is the end of the story told by the emails. I do not know if the employee received his belongings or not.

Regardless, if privacy litigation was contemplated, it had nothing to do with the Report. [ 51 ] There is no evidence to establish that there is ongoing or reasonably apprehended litigation that relates to the Report. If the Report ever was protected by litigation privilege, the indications are that the privilege expired when the employment dispute between the employee and the Town was settled. As a result, litigation privilege does not apply.

ISSue 4: Could disclosure of parts of the report REASONABLY be expected to threaten the safety or health of a witness? [ 52 ] One of ATIPPA’s exceptions to access permits the Town to withhold information if its disclosure could reasonably be expected to threaten the safety or health of a person other than the applicant (s. 37(1)). As with all of ATIPPA ’s exceptions to disclosure, if it is reasonable to sever the excepted information from the record, an applicant has a right of access to the remainder of the record (s. 8(2)).

In this case, the Town seeks only to redact portions of the Report on the basis of expected harm to witnesses.

[ 53 ] The Intervenor submits that this exception does not trump the employee’s right to access to the Report granted by s. 33(2). He also submits that the Town has not established that the harm to third parties exception applies. I need only deal with the second submission. [ 54 ] The language of s. 37, which requires a reasonable expectation of harm, incorporates what is often referred to as a “harms test” or a “reasonable expectation of probable harm test”.

The test captures the need to demonstrate that disclosure will result in a risk of harm that is well beyond the merely possible or speculative, but also that it need not be proved on the balance of probabilities that disclosure will in fact result in such harm ( Merck Frosst Canada Ltd. v. Canada (Health) , 2012 SCC 3 , at para. 206 .) The test seeks to mark out a middle ground between that which is probable and that which is merely possible. The Town must provide evidence “well beyond” or “considerably above” a mere possibility of harm in order to reach that middle ground.

The inquiry is contextual and how much evidence and the quality of evidence needed to meet the test depends on the nature of the issue and “inherent probabilities or improbabilities or the seriousness of the allegations or consequences” ( Ontario (Ministry of Community Safety & Correctional Services) v.

Ontario (Information & Privacy Commissioner) , 2014 SCC 31 , at para. 54 ). [ 55 ] The Town relies on the contents of the Report to establish a reasonable expectation of harm to witnesses. [ 56 ] First, the Town points to statements in the Report that some individuals interviewed were so fearful of reprisals that they would only provide examples to support their allegations if Ms. Murphy assured them that she would not attach their name to the information. Ms. Murphy did not attach their names to the information as a result.

With respect, I cannot see how this information supports an inference that disclosure of the complaints, without associated names, could result in a reasonable expectation of harm to these individuals. Their expressed concern was met by Ms. Murphy. There is no evidence that they were fearful of reprisals against them if their names were not used. [ 57 ] The Town also points to general concern expressed by witnesses that the employee’s response to the investigation would be to “lash out” at Town council and staff.

Additionally, the Town points to information in the Report that tends to show the employee has a history of bullying, harassing and intimidating behavior. My first concern with respect to these arguments is that they are vague and do not directly relate to the information in the Report. [ 58 ] My second concern is that the employee was already given at least some of the information the Town now seeks to withhold. It is clear from the Report that Ms. Murphy provided the employee with a

summary of the allegations against him and a list of questions to answer. In the Report, Ms. Murphy summarized his answers to those questions (the Report, at paras. 155-175). From that

summary, it is clear that the employee was provided details of the allegations, including statements he was alleged to have made, behavior he was alleged to have engaged in, specific events and activities during which his behavior was alleged to have been harassing and bullying. I found references to information in this

section that the Town now seeks to redact. [ 59 ] Neither the Report nor the Court Record filed for this proceeding included the

summary of allegations provided to the employee so I cannot determine how much of the information the Town now seeks to withhold from the employee which was already provided to him. However, the evidence that I have leads me to conclude that the employee has been aware of significant details of the allegations that staff and councilors of the Town made against him since at least the date of the Report (February 2021). Additionally, there is no evidence that he has retaliated or that any of the witnesses have suffered harm as a result.

This significantly undermines the Town’s argument. [ 60 ] Finally, the Town points to evidence that the employee made a “joke” to staff more than two years before the Report was written that involved violence, particularly sexual violence. If true, there was nothing funny about it.

However, to extrapolate from this that the employee may do something violent or cause harm if portions of the Report were disclosed to him now is highly speculative, to say the least. [ 61 ] Ultimately, I am not satisfied that the Town has established that disclosure of parts of the Report will result in a risk of harm to witnesses that is beyond the merely possible or speculative. Accordingly, I find that the s. 37(1) exception to access does not apply.

ISSue 5: CAN parts of the report BE WITHhELD because their Disclosure would be an unreasonable invasion of a third party’s personal privacy? [ 62 ] This issue requires me to consider how two sections in ATIPPA Division 2, entitled “exceptions to access”, operate together: s. 33 (information from a workplace investigation) and s. 40 (disclosure harmful to personal privacy).

Section 40: disclosure harmful to personal privacy [ 63 ] Section 40(1) requires the Town to withhold personal information if its disclosure would be an unreasonable invasion of a third party’s personal privacy. “Personal information” is defined as recorded information about an identified individual (s. 12(u)). The definition includes a non-exclusive list of personal information such as a person’s name, sex and family status. “Third party” is defined as a person or group of persons other than the person who made the request or a public body (s. 2(cc)).

Section 40 provides further guidance as to what is an “unreasonable invasion” of privacy. [ 64 ] The Town seeks to redact portions of the Report on the basis of this exception. The Intervenor did not dispute that some information in the Report may meet the requirements of s. 40(1); rather he submitted that the employee’s right to access to workplace investigation records granted by s. 33(3) trumps the exception to access mandated by s. 40.

In other words, the Intervenor interprets ATIPPA as requiring the Town to disclose all relevant information created or gathered for the purpose of a workplace investigation to the employee, even if some of the information is a third party’s personal information, the disclosure of which would otherwise be considered an unreasonable invasion of that third party’s privacy. [ 65 ] Respectfully, I do not agree with the Intervenor’s

interpretation.

Interpreting ATIPPA [ 66 ] All statutes must be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the statute, the object of the statute, and the intention of the legislative branch. Additionally, every statute must be considered remedial, and must be given the liberal construction and

interpretation that best ensures the attainment of its objects (Interpretation Act, 1990 , R.S.N.L. 1990, c. I-19, s. 16 ). [ 67 ] The object of ATIPPA is addressed in s. 3 : 3.

(1) The purpose of this Act is to facilitate democracy through (

a) ensuring that citizens have the information required to participate meaningfully in the democratic process; (

b) increasing transparency in government and public bodies so that elected officials, officers and employees of public bodies remain accountable; and (

c) protecting the privacy of individuals with respect to personal information about themselves held and used by public bodies. [ 68 ] Subsection 3(2) gives direction on how the purpose is to be achieved and includes:

(2) The purpose is to be achieved by (

a) giving the public a right of access to records; (

b) giving individuals a right of access to … personal information about themselves; (

c) specifying the limited exceptions to the rights of access and correction that are necessary to … (ii) accommodate established and accepted rights and privileges of others, and (iii) protect from harm the confidential proprietary and other rights of third parties; [ 69 ] Division 1 of

Part II of ATIPPA provides for the rights that ensure access to information. In particular, s. 8(1) gives a person a right of access to a record held or controlled by a public body. This right is limited by s. 8(2) which states that the right of access does not extend to information excepted from disclosure under the Act . [ 70 ] Division 2 of

Part II, provides the “exceptions to access”. Fifteen classes of exceptions are included, including information from workplace investigations (s. 33) and disclosure harmful to personal privacy (s. 44). Some exceptions contain a further framework for determining when and to what extent the exception applies to the particular class of records. Some exceptions are discretionary; some are mandatory. Even within classes of records where discretion may be exercised to refuse access, there may be circumstances that qualify the discretion and make access mandatory.

Section 33: information from a workplace investigation [ 71 ] The employee’s right of access to the Report is actually a qualification of a mandatory exception to access for workplace investigations: 33

(2) The head of a public body shall refuse to disclose to an applicant all relevant information created or gathered for the purpose of a workplace investigation.

(3) The head of a public body shall disclose to an applicant who is a party to a workplace investigation the information referred to in subsection (2).

(4) Notwithstanding subsection (3), where a party referred to in that subsection is a witness in a workplace investigation, the head of a public body shall disclose only the information referred to in subsection (2) which relates to the witness' statements provided in the course of the investigation. [ 72 ] Workplace investigation records are excepted from the general right of access granted by s. 8. That exception is qualified such that it does not apply to parties to the investigation. “Party” is defined as a complainant, respondent or a witness who provided a statement to a workplace investigation (s. 33(1)).

The result is that the exception is qualified differently for witness and non-witness parties. [ 73 ] There is nothing in the wording of ATIPPA to signal that mandatory disclosure pursuant to s. 33(3) is paramount to mandatory refusal of disclosure pursuant to s. 40(1) . The Intervenor’s submission is that if the legislature had intended to limit the employee’s positive right of access, it would have included specific language to that effect. As there is no language to signal priority, he submits that the employee’s right should prevail. [ 74 ] Respectfully, I find that this

interpretation does not sufficiently consider the balancing of rights and interests at the heart of ATIPPA ’s purpose and scheme. The goal of facilitating democracy by ensuring that citizens have access to information, particularly personal information about themselves, is not more important than the goal of facilitating democracy by protecting the privacy of individuals with respect to personal information about themselves held and used by public bodies. To put it another way, the objects of

ATIPPA do not place the interests of the employee in the fruits of the workplace investigation over those of a third party who participated in the investigation. [ 75 ] Different provisions that deal with the same facts do not necessarily conflict. For the purposes of statutory

interpretation, conflict is defined narrowly. Overlapping provisions will be given effect according to their terms, unless they “cannot stand together” ( Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168 , 2012 SCC 68 , at para. 41 ). [ 76 ] Here, it is possible for both ss. 33 and 40 to operate together. The employee can have access to the Report and the Town can refuse access to personal information disclosure of which would be unreasonable invasion of a third party’s personal privacy.

To the extent that particular information falls in both categories, s. 8(2) contemplates that if it is reasonable to sever exempted information from a disclosable record, an applicant has a right of access to the remainder of the record. [ 77 ] This

interpretation is more consistent with the legislature’s stated objects for ATIPPA , the statute’s scheme, and the ordinary meaning of its words. Knickle J (as she then was) made a similar observation when considering the interaction of ss. 33 and 41 (disclosure of House of Assembly service and statutory office records) in Kirby v. Chaulk , 2021 NLSC 86 , at para. 42 : Considering the sections as they occur within the Act , there is nothing to suggest that section 33(2) is necessarily paramount to

section 41 or to any of the other exceptions stated in Division II. For example, where the complainant or respondent in a workplace investigation seek access under section 33(2), it is not difficult to envisage that there may be a need to limit the access to information in order to protect sensitive personal information of the opposing party. For example, under

section 40 of ATIPPA it may be that information related to the opposing party, as a third party may be withheld from access, if it would be an “unreasonable invasion of their privacy”. [ 78 ] I conclude that the right of access created by s. 33(3) is not paramount to the mandatory refusal of disclosure pursuant to s. 40(1). [ 79 ] I did not hear submissions from the Town nor the Intervenor as to the particular information the Town seeks to redact from the Report pursuant to s. 40(1). By mistake, the Town appended the incorrect document to its brief where it had intended to include its requested redactions.

I received the proper document after the hearing. After reviewing it, I have concern that some of the redacted information may not meet the requirements of s. 40. [ 80 ] As a result, I am going to return the matter to the Town and the Intervenor. They will have thirty days from the filing of the formal Order to agree upon what information in the Report is personal information, the disclosure of which would be an unreasonable invasion of a third party’s personal privacy. Failing such agreement, the Town or the Intervenor has leave to seek a further court date to appear before me for a determination.

CONCLUSION [ 81 ] The Town’s application for a declaration that it is not required to comply with the Commissioner’s recommendation contained in paragraph 58(

c) of Report A-2021-26 is allowed in part. [ 82 ] The Town shall redact from the Report personal information the disclosure of which would be an unreasonable invasion of a third party’s personal privacy pursuant to s. 40 of ATIPPA . The remainder of the Report shall be released to the employee. [ 83 ] The Town and the Intervenor will have thirty days from the filing of the Order in this matter to agree upon what information in the Report should be redacted to comply with s. 40 of ATIPPA .

Failing such agreement, either party has leave to seek a further court date to appear before me for a determination. [ 84 ] The Intervenor did not seek costs; the Town did. However, as there has been a mixed result on the application, I am exercising my discretion to make no order as to costs. _____________________________ Katherine O'Brien Justice