605499 Saskatchewan Ltd., 605857 Saskatchewan Ltd., Harold Neufeld, Pierre Neufeld, Alexander M. Neufeld, Nicholas H. Neufeld v. Suzanne F. Fischer (Owners,, 2019 SKCA 133

Court of Appeal for Saskatchewan Docket: CACV3229 Citation: 605499 Saskatchewan Ltd. v Rifle Shot Oil Corp. , 2019 SKCA 133 Date: 2019-12-16 Between: 605499 Saskatchewan Ltd., 605857 Saskatchewan Ltd., Harold Neufeld, Pierre Neufeld, Alexander M. Neufeld, Nicholas H. Neufeld and Suzanne F. Fischer (Owners, Occupants, and Applicants) Appellants And Rifle Shot Oil Corp. (Operator and Respondent) Respondent And Surface Rights Arbitration Board Respondent Before: Richards C.J.S., Caldwell and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr.

Justice Kalmakoff In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Caldwell On Appeal From: C.B. 2/18, Saskatchewan Surface Rights Arbitration Board (Kindersley) Appeal Heard: October 23, 2019 Counsel: Richard A. Gibbons for the Appellants Murray W. Douglas for the Respondent Rifle Shot Oil Corp. Charita N. Ohashi for the Respondent Surface Rights Arbitration Board Kalmakoff J.A. I.

Introduction [ 1 ] In Saskatchewan, The Surface Rights Acquisition and Compensation Act , RSS 1978, c S-65 [ SRACA ], governs the relationship between those who are in the business of extracting oil and minerals from the land [operators] and those who own or occupy the surface of the land on which such activity takes place. [ 2 ] This appeal concerns the question of whether access to agreements regarding compensation for surface rights, which s. 30 of SRACA requires operators to file with the Surface Rights Arbitration Board [Board], is subject to the provisions of The Freedom of Information and Protection of Privacy Act , SS 1990-91, c F-22.01 [ FOIPPA ].

The appellants contend that FOIPPA does not apply; the respondents contend that it does. [ 3 ] For the reasons that follow, I conclude that FOIPPA applies and, as such, I would dismiss the appeal. II. surface rights acquisition and compensation: a briEf overview [ 4 ] In order to conduct their business, operators need to acquire surface rights from owners or occupiers of land. Surface rights provide operators with licence to enter upon and use portions of land to carry out the operations necessary to conduct their business. SRACA separates surface rights into two categories.

Part IV of SRACA deals with “Acquisition of Surface Rights for Well Sites, Roadways, Battery Sites and Power Lines”, while

Part V deals with “Acquisition of Surface Rights for Flow Lines and Service Lines”. In that respect, ss. 23 and 41 read as follows: Application of sections 24 to 38 23 Sections 24 to 38 apply in connection with the drilling for, producing, recovering or gathering of a mineral and, to the acquisition by an operator of: (

a) the right to enter upon land for the purpose of drilling for a mineral; (

b) land for a well site and roadway; (b.1) the right to establish, install or operate on a well site any machinery, equipment or apparatus that is specified in the regulations for use exclusively for or in connection with the drilling, completion or producing operations of a well on a well site; (

c) the right to enter upon, use, occupy or take land for the purpose of constructing a power line; and (

d) land for a battery site. … Application of sections 42 to 52

41 Sections 42 to 52 apply to the acquisition of the following rights and land or interest therein that are required by an operator in respect of the surface of the land outside the well site, battery site and roadway: (

a) the right of entry upon lands lying upon the intended route of a flow line or service line for the purpose of making surveys, examinations and other necessary arrangements for fixing the site of the right of way for such line; (

b) the right to enter upon, use, occupy or take land or an interest therein for the purpose of laying, constructing, maintaining and repairing a flow line or service line. [ 5 ] An operator who wishes to acquire surface rights can do so in one of two ways: (

i) by obtaining the consent of the owner or occupant of the land; or (ii) where consent cannot be obtained, by applying to the Board for an order granting surface rights (ss. 24–27 for

Part IV and ss. 42–44 for

Part V). [ 6 ] In exchange for surface rights, operators are required to pay compensation to owners or occupants (s. 28 for

Part IV and s. 46 for

Part V). In many cases, the parties reach agreements with respect to both surface rights and compensation. In others, they do not. [ 7 ] Where operators and owners or occupants are unable to agree on what surface rights are granted or the compensation payable, they may apply to the Board for a determination. SRACA gives the Board authority to hold hearings for that purpose.

In the course of such hearings, the Board may exercise certain powers conferred on a commission of inquiry, including compelling witnesses to give evidence and requiring persons who possess relevant records to produce them. [ 8 ] On the question of compensation, s. 29(1) of SRACA sets out what the Board is to consider in determining the compensation to be paid by an operator for surface rights contained in

Part IV. It reads as follows: Determination of compensation 29

(1) For the purpose of determining the compensation to be paid for surface rights acquired by an operator, the board shall consider the following matters: (

a) the value of the land and the loss of use of the land or an interest therein acquired by the operator; (

b) the area of land that is or may be permanently or temporarily damaged by the operations of the operator; (b.1) the nature, type and quantity of any machinery, equipment and apparatus mentioned in clause 23(b.1) to be established, installed or operated by the operator; (

c) payment or allowance for severance; (

d) the adverse effect of the right of entry on the remaining land by reason of severance; (

e) payment or allowance for nuisance, inconvenience, disturbance or noise, to the owner and occupant, if any, or to the remaining land, that might be caused by, arise from or likely to arise from or in connection with the operations of the operator; (

f) where applicable in the opinion of the board, interest at a rate to be fixed by the board; (

g) any other matter peculiar to each case, including the cumulative effect, if any, of the surface rights previously acquired by the operator or by any other operators under a lease, agreement or right of entry existing at the time of acquisition of the surface rights with respect to the land; (

h) such other factors as the board deems proper, relevant and applicable.

(2) The board may allow to the owner or occupant, if any, reasonable costs and expenses incurred by the owner or occupant relating to the hearing with respect to the acquisition of the surface rights and where the board allows to the owner or occupant such costs and expenses it shall fix the amounts thereof. [ 9 ] Similar wording appears in s. 47(1)(b), in relation to

Part V surface rights. [ 10 ] Where operators and owners or occupants enter into agreements regarding compensation for

Part IV surface rights, SRACA dictates that those agreements must be in writing and must be filed with the Board within 30 days of their execution. In that regard, s. 30 reads: Operator to file agreement with board 30 Every agreement entered into after the coming into force of this Act between an operator and an owner or between an operator and the occupant, if any, with respect to compensation for any surface right mentioned in

section 23 shall be in writing and a copy of the agreement shall be filed by the operator with the board within thirty days after the date of execution thereof. [ 11 ] Again, similar wording appears in s. 51, in relation to

Part V surface rights. [ 12 ] Given the wording of ss. 29 and 47, agreements involving other similarly situated operators and owners or occupants can provide useful evidence to guide the Board in making decisions related to granting surface rights or determining compensation in contested matters. Such agreements may also be useful to parties involved in negotiating agreements or advancing their cases before the Board. III. factual background

[ 13 ] 605499 Saskatchewan Ltd., 605857 Saskatchewan Ltd., Harold Neufeld, Pierre Neufeld, Alexander M. Neufeld, Nicholas H. Neufeld and Suzanne F. Fischer [collectively, the appellants] own farmland in west-central Saskatchewan. [ 14 ] The respondent, Rifle Shot Oil Corp. [Rifle] holds Right of Entry Orders [ROEs] for various parcels of land owned by the appellants. The ROEs were granted following hearings held in accordance with ss. 31 and 41 of SRACA and set out the Board’s determination of the surface rights granted in relation to the appellants’ land.

Some of the ROEs were granted directly to Rifle, while others had originally been granted to a company called Tuscany Energy Ltd. [Tuscany]. Rifle obtained Tuscany’s ROEs through a court- ordered sale after Tuscany went bankrupt. [ 15 ] The appellants and Rifle were unable to agree on compensation. For that reason, on January 30, 2018, a hearing was held to determine the compensation payable by Rifle under the ROEs. At the outset of the hearing, appellants’ counsel made a verbal request for access to records held by the Board, calling it the “usual [application] under

Section 30 for access to the Board’s records”. He took the position that agreements held by the Board under s. 30 of SRACA would be relevant to establishing a “pattern of dealing” and might assist the Board in determining what the appropriate compensation should be. However, no written application for such relief was filed, and counsel did not press the Board for a ruling. Nor did he specify what records he was seeking or ask for an adjournment to obtain them.

Instead, after some brief discussion about procedure, the parties began calling evidence. [ 16 ] The hearing proceeded to conclusion and on March 7, 2018, the Board issued a written ruling, Saskatchewan Surface Rights Board Order C.B. 2/18 (7 March 2018) [ Hearing Decision ]. In the Hearing Decision , the Board determined the compensation payable by Rifle to the appellants under the ROEs in question. The Board also denied the appellants’ request for access to agreements filed under s. 30 of SRACA on the basis that such access was governed by the provisions of FOIPPA .

In that regard, the Board wrote (at 5): The Owner’s solicitor raised the issue of

Section 30 to allow access to leases filed at the Surface Rights Board. The Board recognizes the intent of

Section 30 of The Surface Rights Acquisition and Compensation Act that requires the Operator to file surface compensation agreements, however, the dated Act does not address the confidentiality of the agreements. The Surface Rights Board of Arbitration is subject to The Freedom of Information and Protection of Privacy Act (FOIPPA). The Board is prescribed as a government institution under FOIPPA regulations.

Section 19 of FOIPPA states: “the head of a government institution shall refuse to give access to a record that contains financial, commercial or technical information that is supplied in confidence, implicitly or explicitly to a government institution by a third party.” The Board stands by the FOIPPA that these compensation agreements are provided implicitly in confidence because there has been a practice by the Board that the agreements are privately negotiated arrangements which are expected to be confidential.

IV. the present appeal [ 17 ] The appellants ask this Court to set aside the order made in the Hearing Decision , grant them access to the Board’s records and remit the matter for a new hearing. [ 18 ]

Section 71 of SRACA permits persons affected by a decision of the Board to appeal to the Court of Appeal, with leave. Such appeals are limited to questions of law or jurisdiction. In Neufeld v Rifle Shot Oil Corp. , 2018 SKCA 58 at para 51 , 10 LCR (2d) 124 [ Leave Decision ], Jackson J.A. granted leave to appeal on one question of law in this case: “[Did] [t]he Board [err] in its rejection [of] the application under

section 30 of the Surface Rights Acquisition and Compensation Act by denying access to the Board’s records and accounts[?]” [ 19 ] The appellants contend the Board’s conclusion that the provisions of FOIPPA govern access to agreements filed in accordance with s. 30 of SRACA is an error in law. They assert that a proper purposive

interpretation of SRACA compels the conclusion that the mandatory filing of agreements under s. 30 was intended to, in effect, create a registry that permits public access to those agreements in order to ensure that parties to matters involving surface rights are treated fairly and equitably. [ 20 ] Rifle argues the appeal should be dismissed. It submits the Board correctly determined that FOIPPA applies to the agreements filed under s. 30 of SRACA because the Board is a “government institution” and the agreements are “records” as defined in FOIPPA .

As such, says Rifle, the appellants were required to follow the process set out in FOIPPA to access the agreements, including making a written application in a prescribed form to the “head” of the Board, and not a verbal request to a panel at a hearing. Since the appellant did not follow the FOIPPA procedure, argues Rifle, there was no application before the Board and the Board made no error in rejecting the appellants’ request for access. V. Standard of review [ 21 ] Before turning to the governing standard of review, I pause to comment on the role of the Board as a respondent in this appeal.

In the Leave Decision , Jackson J.A. designated the Board as a respondent. Counsel for the Board filed written submissions and participated in oral argument, correctly observing that the Board’s participation in this appeal must strike a balance between assisting the Court in having a fully-informed adjudication of the matter and the need to maintain the impartiality of the tribunal, should the matter be remitted for a new hearing: Ontario (Energy Board) v Ontario Power Generation Inc. , 2015 SCC 44 , [2015] 3 SCR 147.

In my view, counsel for the Board filled the role appropriately in this instance, providing written submissions that, while supportive of the Board’s decision, were largely informative and not so adversarial as to compromise the Board’s impartiality. [ 22 ] All parties in this case submit the standard of review applicable to the question of law upon which leave to appeal was granted is correctness. I agree. In Fletcher Challenge Energy Canada Inc. v Sulz , 2001 SKCA 11 , [2001] 6 WWR 476 [ Fletcher ], this Court held

that appeals from decisions of the Board – where there is a right of appeal only with leave, and only in respect of questions of law orjurisdiction – attract a correctness standard of review. While Fletcher predates the Supreme Court of Canada’s decision in Dunsmuir vNew Brunswick, 2008 SCC 9, [2008] 1SCR 190, this Court’s decision in Gary L. Redhead Holdings Ltd. v Swift Current (RuralMunicipality), 2017 SKCA 47, 415 DLR (4th) 218, confirmed that Fletcher continues to correctly define the applicable standard ofreview.

VI. analysis [23] The appellants contend that the Board erred in law by rejecting their application for access to records filed with the Boardpursuant to s. 30 of SRACA. [24] In the Hearing Decision, the Board refused to grant access to the agreements sought by the appellants because it viewed thoseagreements as falling within the disclosure exemption set out in s. 19 of FOIPPA.

This disclosure exemption applies to records containingfinancial, commercial or technical information, where those records are provided to government institutions in confidence by a third party.Implicit in the Board’s conclusion that agreements filed under s. 30 of SRACA fall within the disclosure exemption set out in s. 19 ofFOIPPA is a finding that access to such agreements is governed by FOIPPA and that it treated the appellants’ request for the agreementsas a FOIPPA request. [25] Determining whether the Board erred in its conclusion regarding the application of FOIPPA to the agreements in question is, inlarge part, an exercise in statutory

interpretation. The principles governing statutory

interpretation were summarized by this Court inBallantyne v Saskatchewan Government Insurance, 2015 SKCA 38, 457 Sask R 254: [19] The leading case with respect to statutory

interpretation is the Supreme Court of Canada’s decision in Re Rizzo & Rizzo Shoes Ltd., (SCC), [1998] 1 SCR 27 [Rizzo Shoes]. A number of principles set out in that case are applicable to the case at hand,namely: 1. The words of

an Act are to be read in their context and in their grammatical and ordinary sense harmoniously with the scheme of theAct, its objects, and the intention of the legislature (See: Rizzo Shoes at para. 87). (See also: Saskatchewan Government Insurance v Speir,2009 SKCA 73 at para 20, 331 Sask R 250; and Acton v Britannia (Rural Municipality) No. 502, 2012 SKCA 127 at paras 16-17, (2012),[2013] 4 WWR 213 [Acton]). 2. The legislature does not intend to produce absurd consequences. An

interpretation can be considered absurd if it leads to ridiculous orfrivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent or if it is incompatible with otherprovisions or with the object of the legislative enactment (See: Rizzo Shoes at para. 27). 3. Any statute characterized as conferring benefits must be interpreted in a broad and generous manner (See: Rizzo Shoes at para. 21). Thisprinciple is enshrined in s. 10 of The

Interpretation Act, 1995, SS 1995, c. I-11.2 (See: Acton at paras. 16-18). 4. Any doubt arising from difficulties of language should be resolved in favour of the claimant (See: Rizzo Shoes at para. 36). [20] In Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis, 2014) at 28-29, Ruth Sullivan sets out threepropositions that apply when interpreting the plain meaning of a statutory provision: 1. It is presumed that the ordinary meaning of a legislative text is the meaning intended by the legislature. In the absence of a reason toreject it, the ordinary meaning prevails. 2.

Even if the ordinary meaning is plain, courts must take into account the full range of relevant contextual considerations includingpurpose, related provisions in the same and other Acts, legislative drafting conventions, presumptions of legislative intent, absurdities tobe avoided and the like. 3. In light of these considerations, the court may adopt an

interpretation that modifies or departs from the ordinary meaning, provided theinterpretation adopted is plausible and the reasons for adopting it are sufficient to justify the departure from ordinary meaning. [26] These principles are also codified in s. 2-10 of The Legislation Act, SS 2019, c L-10.2, which reads: Acts and regulations remedial 2-10(1) The words of

an Act and regulations authorized pursuant to

an Act are to be read in their entire context, and in their grammaticaland ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature.

(2) Every Act and regulation is to be construed as being remedial and is to be given the fair, large and liberal

interpretation that bestensures the attainment of its objects. [27] For reasons that I will fully develop, application of these principles and consideration of the relevant jurisprudence lead me tothe conclusion that FOIPPA can be applied to requests for access to agreements filed under s. 30 of SRACA. As such, the Board made noerror in rejecting the appellants’ application. [28] As I will explain, the Board is entitled to apply FOIPPA to requests for access to agreements it holds under s. 30 of SRACA [s.30 agreements] because: (

i) the Board is a “government institution” as defined in FOIPPA; (ii) s. 30 agreements are “records” as defined in FOIPPA;

(iii) there is no other existing procedure by which s. 30 agreements may be accessed; and (iv) s. 30 agreements are not matters of public record, records normally available to the public, or records held in a public registry, as set out in ss. 3(1)(b), 4(

b) and 4 (

f) of FOIPPA . [ 29 ] Furthermore, even though I do not endorse the Board’s conclusion that s. 30 agreements are, as a category, always exempt from production by virtue of s. 19 of FOIPPA , the Board was correct in this case to reject the appellants’ application for access, because the appellants did not follow the procedures set out in FOIPPA for seeking access. A. The general applicability of FOIPPA [ 30 ] FOIPPA is an access to information statute. It applies to certain records that are in the possession or under the control of government institutions.

In that regard, s. 5 reads: Right of access 5 Subject to this Act and the regulations, every person has a right to and, on an application made in accordance with this Part, shall be permitted access to records that are in the possession or under the control of a government institution. [ 31 ] The government institutions to which FOIPPA applies are set out in s. 2 of FOIPPA, and s. 3 (

a) of The Freedom of Information and Protection of Privacy Regulations , RRS c F-22.01 Reg 1 [ Regulations ]. In most instances, where records are held by a government institution to which FOIPPA applies, a person who wishes to access those records must make an application in accordance with the procedures set out in FOIPPA . Such an application must to be made to the “head” of the government institution (as that term is defined in s. 2 of FOIPPA ), in the prescribed form, and must specify the subject matter with sufficient particularity to enable the record(

s) to be identified (s. 6(1) of FOIPPA ). [ 32 ] To be clear, the mere fact that a record is held by a prescribed government institution does not mean that FOIPPA is the only way access can be pursued.

However, where FOIPPA applies to both the government institution and the record or information in question, the government institution is entitled to refuse access if the request is not made in accordance with FOIPPA. [ 33 ] Where FOIPPA is engaged, it also sets out a procedure by which the head of the government institution is required to respond to an application made under s. 5, determine whether to provide or deny access to the record, determine whether to apply certain exemptions set out in

Part III of FOIPPA to part or all of the record, and inform the applicant of those decisions (ss. 7(1)--(4) of FOIPPA ). [ 34 ] FOIPPA also provides procedures whereby a party applying for access to a record may seek a review by the Information and Privacy Commissioner of the decision made by the head of the government institution regarding access (ss. 49–56 of FOIPPA ) or appeal that decision to the Court of Queen’s Bench (ss. 57–58 of FOIPPA ). [ 35 ] Some of the statutory exemptions that a head of a government institution must consider when deciding whether to grant a request for access are contained in s. 19(

a) of FOIPPA , which reads, in part, as follows: Third party information 19

(1) Subject to

Part V and this section, a head shall refuse to give access to a record that contains: (

a) trade secrets of a third party; (

b) financial, commercial, scientific, technical or labour relations information that is supplied in confidence, implicitly or explicitly, to a government institution by a third party; (

c) information, the disclosure of which could reasonably be expected to: (

i) result in financial loss or gain to; (ii) prejudice the competitive position of; or (iii) interfere with the contractual or other negotiations of; a third party[.] [ 36 ] In this case, the Board held that s. 30 agreements are necessarily exempt from access on the basis of s. 19 of FOIPPA. As I stated earlier, I do not endorse the Board’s position in that respect, but it is not necessary to determine that question for the purpose of this appeal. I say that because the exemption in s. 19 of FOIPPA is only engaged if the records to which a party seeks access are governed by FOIPPA .

Where FOIPPA applies, there is a detailed procedure that applicants must follow in order to seek access and, if that procedure for requesting access is not followed, the government institution in possession of the records commits no error by refusing access. In this case, the appellants did not follow the procedure set out in FOIPPA . Accordingly, the question of whether the Board erred in rejecting the appellants’ application for access in this case turns on how the provisions of FOIPPA apply to s. 30 agreements. B.

The Board is a “government institution” and agreements filed under s. 30 of SRACA are “records” as defined in FOIPPA [ 37 ] Relevant to this case, the Board is designated, by s. 3 (

a) of The Freedom of Information and Protection of Privacy Regulations , RRS c F-22.01 Reg 1 [ Regulations ], as a “government institution” within the meaning of s. 2(1)(d)(ii) of FOIPPA . “Record” is defined in

s. 2(1)(

i) of FOIPPA as meaning “a record of information in any form and includes information that is written, photographed, recorded or stored in any manner”.

Section 30 agreements appear to fall squarely within that definition. C. Agreements filed with the Board under s. 30 of SRACA and exceptions to the operation of FOIPPA [ 38 ] Given the explicit inclusion of the Board as a “government institution” in FOIPPA and FOIPPA ’s definition of “record”, it would appear on the face of things that FOIPPA applies to requests for access to s. 30 agreements. [ 39 ] That, of course, does not end the analysis. Not all records held by government institutions are subject to the procedures set out in FOIPPA . In that regard, s. 3(1)(

b) provides that FOIPPA “does not apply to: … (

b) material that is a matter of public record”. [ 40 ] In addition to that, s. 4 of FOIPPA provides: Existing rights preserved 4 This Act: (

a) complements and does not replace existing procedures for access to government information or records; (

b) does not in any way limit access to the type of government information or records that is normally available to the public; (

c) does not limit the information otherwise available by law to a party to litigation; (

d) does not affect the power of any court or tribunal to compel a witness to testify or to compel the production of documents; … (

f) does not prevent access to a registry operated by a government institution where access to the registry is normally allowed to the public. [ 41 ] The appellants argue, notwithstanding the Board’s designation as a government institution under FOIPPA and the absence of any explicit exempting language, that requests for access to s. 30 agreements cannot be denied by reliance on FOIPPA . They contend that a proper purposive reading of SRACA reveals an implicit legislative intention to make the agreements publicly available. I take this to be an argument that s. 30 agreements should be seen as being one of four things: (

i) records for which there is an “existing procedure” for access, so as to engage s. 4(

a) of FOIPPA ; (ii) records that fall within the “matter of public record” exception in s. 3(1)(b); (iii) records “normally available to the public” as contemplated by s. 4(b); or (iv) records kept in a registry to which public access is normally allowed, as contemplated by s. 4(f). [ 42 ] Analysis of this argument requires applying the principles of statutory

interpretation to the relevant provisions of both enactments. This entails a thorough analysis of the provisions of both SRACA and FOIPPA , giving due consideration to their overlapping operation in the context of a harmonious provincial legislative scheme. It calls for an assessment of the terms of both statutes, in light of their respective purposes, and the interplay between those enactments and other Acts. 1. There is no “existing procedure for access” as contemplated by s. 4(

a) of FOIPPA [ 43 ] As a starting point, there is nothing in the plain language of SRACA that speaks directly to the question of access to s. 30 agreements.

In that regard, SRACA makes no explicit mention of the purpose for which s. 30 requires agreements to be filed with the Board, does not specify how access to s. 30 agreements may be granted to members of the public, and is silent on whether such agreements are subject to, or exempt from, the operation of FOIPPA . [ 44 ] The plain language of FOIPPA also makes no specific reference to its applicability or non-applicability to s. 30 agreements. [ 45 ] The appellants argue that, despite the absence of any express provision regarding access to s. 30 agreements, SRACA should be read purposively, and that such a reading supports the conclusion that the Legislature implicitly intended that public access should be granted upon request.

The appellants point to the language in s. 29(1) of SRACA , which provides that, for the purpose of determining the compensation to be paid for surface rights, the Board may consider, among other things: … (

g) any other matter peculiar to each case, including the cumulative effect, if any, of the surface rights previously acquired by the operator or by any other operators under a lease, agreement or right of entry existing at the time of acquisition of the surface rights with respect to the land; (

h) such other factors as the board deems proper, relevant and applicable. [ 46 ] The appellants also point to this Court’s decision in Fletcher , which, at paragraph 77 , described the provisions of s. 29(1) as “remedial provisions, calling for a fair, large and liberal construction to the end of achieving their object of ensuring just and equitable compensation determined in accordance with s. 29 ” (emphasis in original). [ 47 ] In light of all of this, the appellants contend that s. 30 cannot be taken as an empty administrative requirement; it must be read as having a purpose that assists in providing for the payment of just and equitable compensation for landholders.

Noting the authorities

that hold that “pattern of dealing” evidence (i.e., evidence relating to compensation paid by operators to landholders in similarcircumstances) is a key component of determining fair and equitable compensation, and also that the Board may properly consider suchevidence during hearings under SRACA (see Fletcher; Canadian Natural Resources Limited v Campbell, 2018 SKCA 67), the appellantsargue that fairness requires landholders to have access to such information.

They assert that information regarding agreements is routinelyand voluntarily shared between operators, but landholders are rarely privy to such information and, as such, in the absence of the ability toaccess the s. 30 agreements held by the Board, landholders are at a distinct disadvantage during compensation hearings. This, argue theappellants, defeats the “just and equitable” purpose set out in s. 3 of SRACA. [48] As a result, the appellants contend that FOIPPA cannot apply to s. 30 agreements.

They argue that, when read in light of thelarger purpose of SRACA, the remedial purpose of s. 29(1), and the importance of agreements as “pattern of dealing” evidence, themandatory filing requirement in s. 30 is indicative of a legislative intent to permit open public access. [49] For reasons that I will develop, I cannot accede to the appellants’ arguments. [50] A purposive analysis begins with an examination of the purpose of the relevant enactments. The purpose of SRACA is set out ins. 3, which reads: Purpose of Act 3 The purposes of this Act are: (

a) to provide for a comprehensive procedure for acquiring surface rights; (

b) to provide for the payment of just and equitable compensation for the acquisition of surface rights; (

c) to provide for the maintenance and reclamation of the surface of land acquired in connection with surface rights acquired under thisAct. [51] As mentioned earlier, FOIPPA is an access to information statute. The purpose of such legislation is to balance the importantpublic interest in accountability of government institutions that results from open availability of information against the need to protectother interests that would be adversely affected by otherwise unbridled disclosure: see John Doe v Ontario (Finance), 2014 SCC 36,[2014] 2 SCR 3.

To that end, FOIPPA contains broad provisions for disclosure as well as specific exemptions from disclosure in order toprescribe the necessary balance “between an individual’s right to privacy and the basic policy of opening agency records and action topublic scrutiny”: General Motors Acceptance Corp. of Canada v Saskatchewan Government Insurance (1993), (SKCA), 109 DLR (4th) 129 (Sask CA) at para 11. [52] As part of the effort to strike the appropriate balance between openness and privacy, FOIPPA empowers the LieutenantGovernor in Council to make decisions about which government institutions will be subject to the provisions of FOIPPA and whichrecords will be subject to or exempt from its operation. [53] On that point, in my view, the Board’s inclusion as a “government institution” in the Regulations is significant.

The appellantsdo not contest the legality of that designation, and it is a prima facie indicator that the provisions of FOIPPA apply to records held by theBoard. [54] There is also nothing in the language of SRACA or any other relevant legislation that evinces an intention that the Board be, ormaintain, a public registry, or that s. 30 agreements are meant to be otherwise readily available to the public.

The plain language ofSRACA says nothing about public access to s. 30 agreements, and nor does it explicitly grant the Board any power to release, publish, orotherwise make them available. [55] Despite the absence of such express language in SRACA, the appellants argue that an implicit intention to permit public accessto s. 30 agreements can still be found by reference to the provisions contained in similar legislation in British Columbia and Manitoba.

Thesurface rights legislation in place in those provinces, like SRACA, requires that agreements of the sort that would fall under s. 30 of SRACAin Saskatchewan be filed with the respective boards in those jurisdictions. However, British Columbia’s Petroleum and Natural Gas Act,RSBC 1996, c 361 [B.C. Act], and The Surface Rights Act, CCSM c S235 [Manitoba Act], in Manitoba, both also contain explicitprovisions that permit public access. In that respect, s. 178 of the B.C.

Act reads: Submission of surface lease information 178(1) A right holder who holds a right of entry under a surface lease must submit to the board, not more than 90 days after the date theright holder acquires the right of entry, (

a) the right holder’s name and address, (

b) a description of the land that is subject to the right of entry, and (

c) a copy of the surface lease, including the terms of the right of entry and any rental provisions.

(2) A right holder described in subsection (1) must submit to the board a copy of any agreement amending a surface lease not more than90 days after the date of execution of the amending agreement.

(3) A surface lease or amending agreement submitted to the board must be available for public inspection at the office of the board duringits regular office hours.

(4) The board may publish prescribed information derived from a surface lease or agreement submitted to the board in a form and manner the board considers appropriate, including on the internet or by other electronic means. (Emphasis added) [ 56 ] Sections 17(1) and 19 of the Manitoba Act read as follows: Operator to file agreement with board 17

(1) Every lease or agreement entered into after the coming into force of this Act between an operator and an owner or between an operator and the occupant, if any, with respect to any surface right shall be in writing and a copy of the lease or agreement shall be filed by the operator with the board within 30 days after the date of execution thereof. … Leases or agreements available for inspection 19 Every lease or agreement filed under subsection 17(1) shall be available for inspection by any person at the office of the board. (Emphasis added) [ 57 ] In my view, the presence of express public access provisions in the B.C.

Act and the Manitoba Act does not support the argument advanced by the appellants. Instead, as I see it, the absence of such language in SRACA supports the contrary position. It undercuts the idea that similar access is implicitly intended under SRACA , or that a verbal request to the Board during a hearing amounts to an existing procedure for access. [ 58 ] My conclusion in that respect is strengthened by the fact that SRACA provides an explicit procedure for access to certain records held by the Board, as set out in s. 16: Duty to keep records 16 The board shall: (

a) keep or cause to be kept a record of all applications and proceedings filed with or heard and determined by the board or a member thereof; (

b) keep or cause to be kept and issue upon request and payment of such fees as may be fixed by the board, certified copies of any order or rule made by the board; (

c) have the custody and care of all records and documents filed with the board. [ 59 ] As is evident, s. 16 (

b) of SRACA makes specific provision for public access to some records kept by the Board, namely its decisions and rules. There is no reference to s. 30 agreements. That absence is notable and cannot be viewed as an accident on the part of the Legislature. By making decisions and rules accessible upon request, in my view, the Legislature has clearly stated its intention regarding which of the Board’s records can be accessed within the scope of SRACA . Proper application of principles of statutory

interpretation compels the conclusion that s. 16 was enacted with an understanding of what the legal implications would be. In that respect, the absence of reference to s. 30 agreements is a clear indication that the Legislature did is not intend the procedure for access to those agreements to come from within SRACA . [ 60 ] In the result, I reject the “implicit access” argument advanced by the appellants. I conclude that there is no “existing procedure” that FOIPPA “complements and does not replace”, as set out in s. 4(

a) of FOIPPA . 2. Sections 3(1)(b), 4(

b) and 4(

f) of FOIPPA do not apply [ 61 ] The question then becomes whether agreements filed with the Board under s. 30 of SRACA are, for some other reason, spared from the operation of FOIPPA . [ 62 ] In my view, access to s. 30 agreements is also not exempt from the operation of FOIPPA by virtue of ss. 3(1)(b), 4(

b) or 4(

f) of FOIPPA . That is because: (

i) s. 30 agreements are not “matter[s] of public record” as described in s. 3(1)(b); (ii) s. 30 agreements are not “normally available to the public” as set out in s. 4(b); and (iii) the Board is not a “registry” normally open to the public as described in s. 4(f). I will explain why I reject the appellants’ argument to the contrary. a. Section 3(1)(

b) of FOIPPA: “ matter of public record” [ 63 ] Section 3(1)(

b) exempts material that “is a matter of public record” from the operation of FOIPPA . No definition of the term “matter of public record” appears in FOIPPA and there has not been a great deal of judicial comment on that term, especially in the context of similar “access to information” statutes. [ 64 ] In Germain v Automobile Injury Appeal Commission , 2009 SKQB 106 , [2009] 7 WWR 509 [ Germain ], Ottenbreit J. (as he then was) wrote: [69] FOIPP does not define what is a matter of public record.

Black’s Law Dictionary 8th Edition defines “public record” at p. 1279 as: A record that a governmental unit is required by law to keep, such as land deeds kept at a county courthouse. Public records are generally open to view by the public.

[70] A number of cases have considered the phrase “public record”. In General Motors Acceptance Corporation of Canada v. Perozni,supra, at para. 59, the Alberta District Court concluded that public records “refers to certain records or documents which are kept bycertain government officials whose duty it is to inquire into and record permanently matters and facts about public matters. Under thisdefinition would fall ... court and certain government tribunal records.” [71] In Sturla v. Freccia (1880), 5 A.C. 623 at p. 643 Lord Blackburn stated: ...

I understand a public document there to mean a document that is made for the purpose of the public making use of it, and being able torefer to it. ... [72] I accept all of these three

definitions of “public record” … [65] These

definitions of “public record” are consistent with the

interpretation given to that term by Saskatchewan’s Information andPrivacy Commissioner who, in Re Saskatchewan (Energy and Resources), , wrote (at para 7): … “a matter of public record” relates to documents that one would typically find in a public register that the members of the public haveready access to. In other words, a matter of public record would be information collected and maintained specifically for the purpose ofcreating a record available to the general public. [66] The only province with freedom of information legislation that appears to contain the same “matter of public record”exemption provision as set out in s. 3(1)(

b) of FOIPPA is Nova Scotia. Section 4(2)(

b) of The Freedom of Information and Protection ofPrivacy Act, SNS 1993, c 5, reads identically to s. 3(1)(

b) of FOIPPA. Courts in that province have endorsed the same

definitions of“matter of public record” as were endorsed in Germain (see, for example, Gatemaster Inc. v Nova Scotia (Department of Housing andMunicipal Affairs) (2000), (NS SC), 182 NSR (2d) 156 (NSSC)). In Hogue v Montreal Trust Company of Canada, (NSSC), the Court determined that the question of whether material is a “matter of public record” turns on whether therecords in question were of a type that would generally be available to the public. [67] I adopt, in general terms, the

definitions of “matter of public record” set out in these decisions. That is, broadly speaking,“matter[s] of public record” have two key characteristics in the context of FOIPPA: (

i) the record is held by a government institution thatis under a duty to keep or collect it; and (ii) the record is information that members of the public have a right to access. In my view, s. 30agreements do not have those characteristics and, as such, are not matters of public record. [68] In that regard, I would note that, even though the Board is a tribunal, s. 30 agreements are not “government tribunal records” ofthe sort referred to in General Motors Acceptance Corporation of Canada Ltd. v Perozni (1965), (AB KB), 51 DLR (2d)724 (Alta Dist Ct), a decision cited with approval in paragraph 70 of Germain.

The type of “tribunal records” referred to in that passageare records of proceedings or hearings, or material presented to the tribunal in connection with such hearings. Agreements filed under s. 30of SRACA are a different animal. This conclusion is supported by the absence of reference to s. 30 agreements in s. 16 of SRACA, to whichI referred earlier. Subsection 16(

b) provides for access, upon payment of a fee, to any orders or rules made by the Board, but it does notprovide for access to s. 30 agreements. That must be seen as intentional on the part of the Legislature. [69] It is also relevant, in my view, that s. 30 agreements are not records of transactions involving government bodies. They containinformation related to business dealings between private entities. Significant commercial and privacy interests may be affected bypermitting unregulated public access. In light of that, s. 30 agreements do not become “matter[s] of public record” simply because there isa statutory requirement that they be filed with the Board. b.

Section 4(

b) of FOIPPA – records “normally available to the public” [70] Much of what I have said regarding the lack of an existing procedure for access under s. 4(a), and the “matter of public record”exemption in s. 3(1)(

b) of FOIPPA also applies to the question of whether s. 30 agreements are records “normally available to the public”as set out in s. 4(

b) of FOIPPA. [71] There is nothing in the record to suggest that s. 30 agreements have ever been made available to the public. While the mere factthat the Board has never made such agreements available is not determinative of the question, it is noteworthy. That history becomes evenmore important in light of the factors to which I have already made reference, namely: (

i) SRACA does not contain, and has nevercontained, a procedure for providing public access to s. 30 agreements; (ii) s. 30 agreements are not mentioned in the access provisions setout in s. 16 of SRACA; and (iii) SRACA contains no provisions for public access similar to those in the B.C. Act or Manitoba Act. [72] In light of all this, I am compelled to the conclusion that s. 30 agreements are not “records normally available to the public” ascontemplated by s. 4(

b) of FOIPPA. c.

Section 4(

f) of FOIPPA – information in a public registry [73] In my view, the Board is also not a “public registry” in the sense contemplated by s. 4(

f) of FOIPPA. Saskatchewan haslegislation that establishes certain public registries; The Operation of Public Registry Statutes Act, SS 2013, c O-4.2 [OPRSA], applies tovarious enactments that govern the operation of the such registries.

In s. 2(1)(i), the OPRSA defines “registry” as “a registry established orcontinued pursuant to a public registry statute and includes information provided to, and the data created or maintained in the operation of,a public registry statute”. [74] The OPRSA and The Operation of Public Registry Statutes Regulations, RRS c O-4.2 Reg 1, set out a total of 19 registrygoverning enactments that fall under their ambit. SRACA is not one of them. In my view, this is a clear indication that the Board was notintended to operate a public registry in respect to s. 30 agreements.

[ 75 ] I take the absence of a reference to public access to s. 30 agreements in SRACA , and the absence of reference to SRACA in OPRSA to be another clear sign of legislative intent, because the Legislature is presumed to be competent in drafting legislation, presumed to know whatever information is relevant to the law it enacts, presumed to know the law in existence at the time of enactment, and presumed to be able to communicate the meaning it intends legislation to have. As Ruth Sullivan notes in Statutory

Interpretation , 3d ed (Toronto: Irwin Law, 2016) at 40–41: It is assumed that the legislature is an accomplished user of language and has fully mastered the linguistic conventions through which meaning is communicated to an audience. Like the courts themselves, the legislature understands the impact of context on meaning and the significance of word choice and word order; it appreciates the nuances of sophisticated language use. It is also assumed that the legislature is a careful user of language, that it says what it means exactly and therefore means exactly what it has said.

Its texts are scrutinized, analyzed, and often much revised before the final version is enacted into law. … … This high level of attention to linguistic detail is meant to minimize inadvertence and mistakes so that the final text captures the desired meaning. [ 76 ] Moreover, the absence of provisions in SRACA similar to s. 178(3) of the B.C. Act and s. 19 of the Manitoba Act also supports the conclusion that the Board is not a public registry, as contemplated by s. 4(

f) of FOIPPA . 3. Conclusion [ 77 ] In the end, I conclude that s. 30 agreements are not excluded from the operation of FOIPPA on the basis of the “matter[s] of public record” exception contained in s. 3(1)(b). Nor can a person seeking access to s. 30 agreements sidestep the procedural requirements of FOIPPA on the basis of an existing right of access preserved by s. 4. The filing requirements under SRACA are not indicative of an implicit legislative intention to create another method for access, s. 30 agreements are not generally available to the public and the Board is not a public registry, as set out in ss. 4(a), (

b) or (

f) of FOIPPA , respectively. Accordingly, the Board was entitled to reject the appellants’ request for access in this case, given that it was not made in accordance with FOIPPA. 4. Sections 4(

c) and (

d) of FOIPPA – a final word: potential “situational” exceptions [ 78 ] While the wording of FOIPPA appears to leave open the prospect that, in certain circumstances, s. 30 agreements may be accessed outside of the procedures prescribed in FOIPPA by virtue of s. 4(c) (information otherwise available by law to a party to litigation) or s. 4(d) (compelling testimony and production of documents in conjunction with the Board’s powers under s. 8(4) SRACA and s. 11 of The Public Inquiries Act, 2013 , SS 2013, c P-38.01 ), those are not possibilities I need further consider in the context of this appeal. [ 79 ] I say this because the question of law upon which leave was granted in this case is whether the Board made a legal error in rejecting the appellants’ application for access to s. 30 agreements held by the Board.

When counsel for the appellants made the request for access to records at the outset of the hearing, he made no reference to those legislative provisions and provided no submissions as to any legal authority underlying his request. Furthermore, it would appear, by virtue of s. 80 of SRACA , that any application seeking relief from the Board must be in writing. The appellants made no written application of any sort relating to production of records. Accordingly, in my view, the Board made no error in dismissing the application. VII.

summary [ 80 ] In the end result, I conclude that the Board made no error in its consideration of FOIPPA in relation to the appellants’ request for access to agreements filed with it under s. 30 of SRACA . This was not a case where an exception applied or where there was an existing right of access that was preserved and, further, the appellants did not comply with the procedural requirements set out in FOIPPA . Accordingly, the Board was correct to reject the appellants’ application for access. VIII. conclusion [ 81 ] The appeal is dismissed.

The respondents are entitled to the costs of this appeal. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Caldwell J.A.” Caldwell J.A.