Stevens v. Nova Scotia (Labour ), 2012 NSSC 367

SUPREME COURT OF NOVA SCOTIA Citation: Stevens v. Nova Scotia (Labour ), 2012 NSSC 367 Date: 20121022 Docket: Hfx. No. 377941A Registry: Halifax Between: Brad Stevens Appellant v. Department of Labour and Workforce Development Respondent DECISION Judge: The Honourable Justice J. E. Scanlan Heard: September 10 & October 4, 2012, in Halifax, Nova Scotia Counsel: Dillon Trider, Solicitor for the Appellant Alison Campbell, Solicitor for the Respondent By the Court : [ 1 ] There is little dispute on the relevant facts. They are set out in the parties respective briefs and I summarize as follows. [ 2 ] The Appellant in this case was employed by a company called G. J. Cahill & Company

(1979) Ltd. He claims to have suffered a workplace injury as a result of exposure to bird droppings. The Occupational Health and Safety division of the Province investigated his complaint and ultimately laid charges against G. J. Cahill & Company on October 9, 2007. The trial was scheduled to proceed on September 8-12, 2008. [ 3 ] On August 29, 2008, the Prosecutor met with a proposed expert witness. As a result of that meeting, the Prosecutor was of

the opinion that there was no longer a reasonable prospect of conviction, and felt duty-bound to discontinue the prosecution. On September 8, 2008, the Prosecutor ended up offering no evidence at the trial and the charges were dismissed. [ 4 ] The Appellant seeks information that may be relevant answers to questions about the prosecution. The Appellant filed an Application for Access to the Record of the Respondent on September 9, 2008. [ 5 ] The Province ’ s first response was provided to the Appellant on November 6, 2008 and included approximately 1,400 pages of material.

Some of these pages had material redacted, or severed, and the number of the exemption provision was written in the margin beside the redacted portion of text. At this time, approximately 600 pages were withheld in full. [ 6 ] The Appellant filed a Request for a Review with the Nova Scotia Freedom of Information and Protection of Privacy Review Office ( “ Review Office ” ) on December 22, 2008.

On August 19, 2010 the Province issued a supplementary disclosure decision to the Appellant. [ 7 ] On June 10, 2011, the Province issued a second supplementary disclosure decision and disclosed approximately 350 pages of various documents and witness statements with personal information redacted. [ 8 ] On September 13, 2011, the Province issued a third supplementary disclosure decision acknowledging that the Appellant had agreed to not seek any information protected under s.20 of the FOIPOP Act as personal information. [ 9 ] The Review Officer issued a report on December 12, 2011, which made a number of recommendations including a recommendation that the Province release all material withheld under all exemptions claimed, with the exception of those made under s.20 of the FOIPOP Act .

The Province did not accept the Review Officer ’ s recommendation to release any further records and confirmed the Province ’ s previous decisions in a letter to the Appellant dated January 12, 2012. [ 10 ] Pursuant to s.41 of the FOIPOP Act , the Appellant filed an appeal of the January 12, 2012 decision with this Court on February 9, 2012. [ 11 ] There was additional disclosure at the time the parties first appeared before the Court in September, 2012.

The Court then reviewed all remaining undisclosed documents to determine if the Respondent had appropriately redacted only documents which they were entitled to redact pursuant to the applicable legislation. After a review of all redacted documents, I asked Respondent counsel to appear in an in camera session to answer any questions I had in terms of redacted documents.

During that in camera session the Respondent, through counsel, agreed to produce further documents to the Appellant. [ 12 ] This Court is satisfied that once those additional documents are produced, the Respondent will have provided the Appellant with all documents the Respondent is obliged to produce under the FOIPOP legislation. The Respondent has referred to the appropriate sections of the legislation in redacting all other materials which have been withheld. [ 13 ] There are a couple of issues that I wish to address further.

It appears the initial review officer may have taken the position that the Respondent could not withhold documents on the basis that they were irrelevant. The Respondent referred to those materials as “ not applicable ” . According to the Respondent the Review Officer suggested there was no recognized exemption under FOIPOP legislation for “ non applicable ” materials. Any such ruling would defy common sense.

What possible relevance would it be to the Appellant if someone commented in a document that their grandmother had a wart removed from her nose. (Not that any such comment was made in the redacted materials). With e-mail communications the author on a number of occasions mixed personal or non relevant communications with information which was properly disclosed. The personal, non relevant, information is not something to which the Appellant is entitled to access. There are some things in records, such as e-mail, which are clearly irrelevant and should not be disclosed.

The types of documents that fall in the “ not applicable ” category include, for example notes from unrelated investigations or proceedings. The Appellant has no right to see those types of documents just because they are in an officer ’ s notebook. As I have noted, to suggest non relevant documents are to be produced on a FOIPOP application defies common sense and the scope of the legislation.

[ 14 ] Before I close, I would address a final issue raised by the Appellant. He seeks any information that may assist him in his health assessment and treatment. I requested and received assurance from the Respondent that they would not seek to withhold any useful or relevant information from the Appellant under any provision of the FOIPOP process if they felt it may assist the Appellant in his medical treatment or assessment.

I could not identify any information in the redacted portions of the record which I felt would assist the Appellant in his medical treatment or assessment. [ 15 ] I will hear from the parties on the issue of costs now that production is complete and the parties have my comments. If they can agree on costs, I ask they advise the Court by November 30, 2012. The Appellant will then have until December 7, 2012, to make a final submission on costs and the Respondent will have until December 14, 2012 to file a final submission in response. J. 10/22/2012