Klippenstein v. Manitoba (Minister of Family Services Date:, 2012 MBCA 78

Citation: Klippenstein v. Manitoba (Minister of Family Services Date: 20120827 and Consumer Affairs), 2012 MBCA 78 Docket: AI 11-30-07677 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Marc M. Monnin Mr. Justice Alan D. MacInnes BETWEEN : ) LARRY PETER KLIPPENSTEIN ) L. P. Klippenstein ) on his own behalf (Applicant) Appellant ) ) ) D. A. Johnston ) for the Respondent - and - ) ) ) Appeal heard: ) May 31, 2012 THE MINISTER OF FAMILY SERVICES ) AND CONSUMER AFFAIRS ) ) Judgment delivered: (Respondent) Respondent ) August 27, 2012 HAMILTON J.A. 1 Mr.

Klippenstein appeals the decision of a judge of the Court of Queen’s Bench dismissing his appeal from the refusal of his request for access to information under The Freedom of Information and Protection of Privacy Act , C.C.S.M., c. F175 ( FIPPA ). FIPPA has been amended since Mr. Klippenstein made his request on July 14, 2010. All FIPPA references in these reasons are to the statute in force at the time of his request. 2 This appeal was heard at the same time as another appeal brought by Mr. Klippenstein. In my reasons for dismissing that appeal, I explained that Mr.

Klippenstein has brought numerous court proceedings that appear to have a common underlying factor; namely, his dissatisfaction with various decisions made by the Residential Tenancies Branch (the Branch) and the Residential Tenancies Commission (the Commission). See Klippenstein v. Manitoba (Attorney General) et al. , 2012 MBCA 77 at paras. 3-4 . 3 This proceeding is no different, in that it concerns Mr.

Klippenstein’s request to have access to records held by the Branch and the Commission, the majority of which were filed by his former landlord with respect to its application under s. 123(2) of The Residential Tenancies Act , C.C.S.M., c. R119, for “above-guideline” rent increases. 4 Over the course of several days (13 hours in total), Mr. Klippenstein had access to the records that he requested through on- site inspections pursuant to s. 6(2) (

a) of the Residential Rent Regulation , Man. Reg. 156/92: 6(2) A party to an application for an increase in rent or the amount of a separate charge for laundry facilities may, within 10 days after the director sends a notice under subsection (1) or under subsection 123(5) or 127(3) of the Act, or such further time as the director may allow,

(

a) inspect during normal office hours the material provided to the director in respect of an application or objection; …. 5 The Minister of Family Services and Consumer Affairs (the Minister), as the “head” of both the Branch and the Commission under FIPPA , refused Mr. Klippenstein’s request to provide copies of those records relating to the “above-guideline” rent increases.

The Minister provided copies of other records that he requested. 6 After pursuing a complaint to the Manitoba Ombudsman, as he was obliged to do under s. 59(1) of FIPPA , he appealed the Minister’s refusal to the Court of Queen’s Bench pursuant to s. 67(1) of FIPPA , asserting that he was entitled to copies of the records. 7 As a preliminary matter to the appeal, the documents comprising the records at issue, which comprise over 1400 pages, were sealed pursuant to a consent order of the Court of Queen’s Bench. 8 After hearing submissions, the judge reserved to review the documents that were sealed “in order to determine whether the documents fell within an applicable statutory exception relied on by the Minister” (at para. 8). 9 In dismissing Mr.

Klippenstein’s motion, the judge wrote (at paras. 10-12): While it is true, as the applicant says, that there has already been a form of disclosure in this case as he has been able to view the documents on site at the Residential Tenancies Commission, it does not follow that those documents are now in the public realm. I agree that Regulation 6(2) of the Residential Rent Regulations provides a limited opportunity to inspect the material, but it does not extend to obtaining copies of those records. The provisions of the Act still apply to those documents for the purposes of obtaining copies of same.

I, therefore, must be satisfied that the test under s. 73 of the Act is met.

Section 18 protects disclosure harmful to third party’s business interests and s. 17 protects personal information of third parties. I am satisfied that the documents fall within the exceptions contained in ss. 17 and 18 of the Act . In my view, this material falls squarely within ss. 18(1)(

b) and (c), or ss. 17(1), 17(2)(c), 17(2)(g), and 17(3) of the Act , and the Minister is clearly required or authorized to refuse access to these records. I also find that the limiting provisions set out in ss. 17(4)(

c) and 18(3)(

c) of the Act do not apply in this case, given that the disclosure requirement provided in Residential Rent Regulation 6(2) is limited to merely viewing the records and does not extend to obtaining copies of those records. I have also considered whether the applicant should have access to information that can reasonably be severed from the record, but I find that such an exercise would produce meaningless documents or would risk disclosing the privacy interests of third parties. In the result, I am dismissing the application.

The applicant is, therefore, only entitled to copies of the documents which had previously been released by the Minister either before, or at the hearing of, this application. 10 Mr. Klippenstein’s factum raises many issues. Counsel for the Minister helpfully distilled them into five issues: 1. Whether this court should appoint counsel for Mr. Klippenstein pursuant to s. 5 of The Constitutional Questions Act , C.C.S.M., c. C180. (This is the specific issue raised in Klippenstein v. Manitoba (Attorney General) et al. ) 2.

Is s. 6(2) of the Residential Rent Regulation invalid, inapplicable or inoperable as a result of an inconsistency with s. 15 of the Charter of Rights and Freedoms ? 3. Is there a reasonable apprehension that the judge was biased? 4. Did the judge err in his identification and

interpretation of the relevant statutory provisions? 5. Did the judge err in finding that the Minister was authorized or required to refuse to provide Mr. Klippenstein with copies of the particular records at issue? 11 Counsel for the Minister also raised a fundamental preliminary issue with respect to the jurisdiction of this court to entertain

Mr. Klippenstein’s appeal. He argues that this court has no jurisdiction to hear the appeal in light of s. 74 of FIPPA: No further appeal 74 A decision of the court under

section 73 is final and binding and there is no appeal from it. 12 The decision of the judge was a decision under s. 73 of FIPPA. 13

Section 74 has been mentioned only once in reported case law. See Filippo-Bartle v. Manitoba (Minister of Family Servicesand Housing), 2009 MBQB 108, 239 Man.R. (2d) 94, in which Sinclair J. observed that “s. 74 provides that a decision of the court unders. 73 is binding and final and there is no further appeal from it” (at para. 25). 14 This court has addressed other legislation with similar wording to s. 74 and held that the court had no jurisdiction to hear anappeal. See Morton and Municipal Board (Man.) v.

Versatile Cornat Corp. and MacDonald (Rural Municipality) (1981), (MB CA), 17 Man.R. (2d) 139 (C.A.), dealing with, at that time, s. 47 of The Planning Act, C.C.S.M., c. P80, and Southglen MobileHome Community v. Closson et al., 2007 MBCA 16, 212 Man.R. (2d) 225, and Edison Rental Agency v. Klippenstein, 2011 MBCA 14(Chambers decision), dealing with s. 179 of The Residential Tenancies Act. Also see Macdonell v.

Quebec (Commission d’accès àl’information), 2002 SCC 71, [2002] 3 S.C.R. 661, in which Gonthier J. (for the majority) wrote that the effect of wording similar to s. 74in Quebec’s legislation (an Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information,R.S.Q., c.

A-2.1) is that “[t]he decision of the Court of Québec is the final step in the decision-making process, since no appeal lies fromit” (at para. 5). 15 As is well known, the right of appeal to this court is provided by statute and does not arise “as of right.” Decisions of theCourt of Queen’s Bench may be appealed to this court, unless that right of appeal is limited by statute. See s. 89 of The Court of Queen’sBench Act, C.C.S.M., c. C280: Appeal to Court of Appeal 89 Unless otherwise provided by statute, (

a) an order made by the court may be set aside in whole or in part or varied; ... on appeal to the Court of Appeal. [emphasis added] 16 I agree with counsel for the Minister that s. 74 of FIPPA is the sort of statutory provision that the opening words of s. 89 ofThe Court of Queen’s Bench Act contemplate. In other words, s. 74 of FIPPA has “otherwise provided” that there is no appeal from thedecision of a judge under s. 73 of FIPPA. Therefore, this court has no jurisdiction to “set aside in whole or in part or var[y]” thedismissal of Mr. Klippenstein’s FIPPA application. 17 Given that, Mr.

Klippenstein’s appeal must be dismissed. As a result, it would be inappropriate for me to comment on any ofMr. Klippenstein’s arguments, except for one. 18 Mr. Klippenstein alleged that there was a reasonable apprehension of bias on the part of the judge because his brother, ajudge of this court, had previously dealt with another, but unrelated, matter involving Mr. Klippenstein.

An allegation of reasonableapprehension of bias is a very serious allegation, and I think it important to state for the record that there was absolutely no merit to Mr.Klippenstein’s allegation. 19 Finally, the Minister sought costs from Mr. Klippenstein under Tariff “B” of the Court of Appeal Rules. Usually, anunsuccessful litigant is ordered to pay costs. Mr. Klippenstein’s personal circumstances are difficult and challenging and must be takeninto account. I think it fair to say that many would describe his efforts in court as relentless, particularly in light of his history ofdismissals.

Given that costs were not sought by the Minister, or awarded, in the Court of Queen’s Bench, and that counsel for theMinister did not articulate why costs should now be awarded, I would not order costs in favour of the Minister. 20 I would dismiss the appeal without costs.

J.A. I agree: J.A. I agree: J.A.