Leo v Global Transportation Hub Authority, 2020 SKCA 91

Court of Appeal for Saskatchewan Docket: CACV3445 Citation: Leo v Global Transportation Hub Authority , 2020 SKCA 91 Date: 2020-08-04 Between: Geoff Leo Appellant (Applicant) And Global Transportation Hub Authority Respondent (Respondent) And Brightenview Developments International Ltd. Respondent (Third Party) Before: Richards C.J.S., Schwann and Tholl JJ.A. Disposition: Appeal allowed in part Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Tholl On appeal from: 2019 SKQB 150 , Regina Appeal heard: May 4, 2020 Counsel: Sean Sinclair for the Appellant David Bishop and Graham Quick for the Respondent, Global Transportation Hub Authority E.F. Anthony Merchant, Q.C., for the Respondent, Brightenview Developments International Ltd. Richards C.J.S. I. Introduction [ 1 ] Geoff Leo applied, pursuant to The Freedom of Information and Protection of Privacy Act , SS 1990-91, c F-22.01 [ Act ], for access to certain records held by Global Transportation Hub Authority [GTH]. This eventually led to an appeal, under the Act , to the Court of Queen’s Bench.

The Chambers judge dismissed Mr. Leo’s appeal with costs and, in so doing, left intact a GTH decision that had denied him access to some of the records in issue. [ 2 ] Mr. Leo now appeals to this Court. He contends that he should have full access to all of the records he requested and argues that the Chambers judge should not have awarded costs against him. As explained below, Mr. Leo’s appeal, as it relates to access to the records, must be dismissed because the appeal to the Court of Queen’s Bench was ill-founded. I would, however, set aside the award of costs that was made against Mr. Leo. II.

The Act [ 3 ] The Act sits at the heart of this appeal. As a result, it is useful to begin with a brief overview of how it operates. [ 4 ] Subject to the Act and the regulations made pursuant to it, every person has a right to access records that are in the possession or under the control of a government institution (s. 5). [ 5 ] Where an application is made for access to a record, it is considered by the head of the government institution. The “head” is a person prescribed by the Lieutenant Governor in Council pursuant to s. 69 (

c) of the Act . The head shall, within 30 days, take one of several steps. These steps include indicating that access to the record will be provided on payment of a prescribed fee and refusing access to the record while setting out the specific reason for the refusal by referencing the provision of the Act on which that decision is based ( s. 7 ). [ 6 ]

Part III of the Act specifies the grounds on which access to records may or must be refused. Those grounds relate to situations where disclosure would reveal such things as law enforcement and investigations (s. 15), cabinet documents (s. 16), advice from officials (s. 17), information harmful to economic and other interests (s. 18), third party information (s. 19), communications subject to solicitor– client privilege (s. 22) and personal information (s. 29). Parts of s. 19 are especially relevant to this appeal. They are as follows: 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[.] [ 7 ] Where a head intends to give access to a record that the head has reason to believe may contain information, the disclosure of which would cause specified kinds of financial and commercial harm to a third party, the head must give written notice to the third party (s. 34). The third party who is given notice may make representations to the head as to why access to the record should not be given.

The head then decides whether to grant access (s. 37). [ 8 ] If an applicant or a third party is not satisfied with the decision of a head or a head fails to respond to an application for access to a record within the required time frame, the applicant or third party may apply to the Information and Privacy Commissioner for a review of the matter (s. 49). On completing a review, the Commissioner may prepare a report setting out his or her recommendation (s. 55).

Within 30 days of receiving the Commissioner’s report, the head must make a decision about whether to follow the recommendation and give notice of that decision to the applicant or third party and the Commissioner (s. 56). Within 30 days of receiving the head’s decision, an applicant or a third party may appeal that decision to the Court of Queen’s Bench (s. 57). [ 9 ] In this case, the relevant GTH decisions with respect to the Act were made by the individual acting as the “head” for GTH. However, in the interests of ease of expression, I will simply refer to these decisions as having been made by GTH. III.

Background [ 10 ] GTH is a Crown corporation that operates a warehousing and transportation centre. It is a “government institution” within the meaning of the Act and is therefore subject to the Act . [ 11 ] Mr. Leo, a journalist, is employed by the Canadian Broadcasting Corporation. In May of 2017, he filed ten access to information requests with GTH. Three of these requests are at issue in this appeal.

They are as follows: • Access Request #1 – all records which mention Chan Niu and/or Mike Niu and/or Yilin Zhan and/or Jessie Zhan from January 1, 2013, to present. • Access Request #2 – all emails between Rhonda Ekstrom and/or Bryan Richards and Joe Zhou and/or Lorne Nystrom from January 1, 2016, to present. • Access Request #3 – all correspondence to or from Rhonda Ekstrom and/or Bryan Richards relating to Yingke Global Holding Group from April 1, 2016, to present. I will refer to these Requests collectively as the “Access Requests”. [ 12 ] In June of 2017, GTH issued a fee estimate for each of these Requests.

In early October, it received a payment from Mr. Leo that covered the deposits for each of the estimates. [ 13 ] GTH had reason to believe, on a review of the records responsive to Mr. Leo’s requests, that some of the records contained third party information of the sort described in s. 19 of the Act . [ 14 ] In late October of 2017, GTH notified Brightenview Developments International Ltd. [Brightenview] and other third parties of the Access Requests.

It indicated that it intended to give access to the records and advised Brightenview of its right to make representations to the effect that access should be denied. At the same time, GTH advised Mr. Leo that it had given notice to third parties and that it would make a decision on his access request after the third parties had responded. [ 15 ] On November 24, 2017, Mr. Leo wrote to the Commissioner and requested that he review the Access Requests because there had been no response to them. [ 16 ] The Commissioner’s office notified GTH on December 6, 2017, that it had received a review request from Mr. Leo.

It referred to the fact that Mr. Leo had paid a deposit with respect to the cost of the records that he had requested but had “yet to receive GTH’s final

section 7 response with accompanying records”. The Commissioner’s office advised that it would be “undertaking a review of this matter pursuant to

Part VII of [the Act ]. … Please provide the Analyst with your submission by December 20, 2017. In your submission, please explain why GTH did not respond to the Applicant’s request within the legislated timeline pursuant to

section 7 of [the Act ]”. [ 17 ] On December 14, 2017, GTH advised Mr. Leo, by way of a separate letter for each Access Request, that it had received third party representations with respect to the records in issue and, in light of them, had revised the records to be released so as to remove certain additional third party information. The letters went on to state as follows: However, pursuant to sections 37(2)(

a) and 49 of [the Act ] both you and the third party have 20 days to request a review of this decision by the Office of the Information and Privacy Commissioner.

You will be given access to the records in accordance with the decision after the 20 days have elapsed unless you or the third party requests a review. [ 18 ] On December 15, 2017, GTH sent a letter to Brightenview indicating that it had taken Brightenview’s representations into consideration and had revised the records to be released. [ 19 ] The Commissioner’s office notified GTH, by an email dated December 28, 2017, that it had received “requests for review” from Brightenview in relation to the Access Requests.

The Commissioner’s office asked that GTH not release the records in question until it had conducted a review. On January 5, 2018, in a longer communication, the Commissioner’s office advised GTH that it had received a

third party request for a review from Brightenview regarding GTH’s decision to provide access to portions of the records requested by Mr. Leo pursuant to the Access Requests. It advised that “[o]ur office will be undertaking a review pursuant to

Part VII of [the Act ]. … Please provide the Analyst with your submission and the record by January 19, 2018. Please refer to our IPC Guide to Exemptions for the tests for subsection 19(1) found on pages 23 to 28. Please explain how GTH determined that no part of 19(1) was applicable to the information in question”. [ 20 ] Between January 31, 2018, and March 26, 2018, GTH provided written submissions to the Commissioner’s office with respect to the applicability of ss. 19(1) (

b) and (

c) of the Act . In that regard, it took the position that certain records fell within the s. 19(1) exemption from disclosure. In redacted records provided to the Commissioner, GTH also noted its position that certain records would not be released because of the exemptions found in s. 16 (cabinet documents), s. 17 (advice from officials), s. 18 (economic and other interests), s. 22 (solicitor–client privilege) and s. 29 (personal information). [ 21 ] The Commissioner released his report on April 24, 2018.

It dealt first with the question of whether GTH had complied with the terms of the Act concerning the timelines for a government institution to make a decision on an access request. He found that GTH had not complied with those provisions. The report also dealt with Brightenview’s request for a review of the possible release of the records and concluded that neither s. 19(1) (

b) or (

c) of the Act applied to those records. The Commissioner also noted, somewhat in passing, that some of the records contained “personal information” within the meaning of the Act and “personal health information” within the meaning of The Health Information Protection Act , SS 1999, c H-0.021 [ HIPA ], and that they should be redacted to that extent. In the “Recommendations”

section of his report, the Commissioner wrote as follows: [95] I recommend that the GTH amend its procedures so that even if it is extending the time period set out in subsection 7(2) of FOIP pursuant to

section 12 of FOIP, that it takes steps to ensure it is providing notices to third parties pursuant to

Part V of FOIP no later than the 30th day from which it received the access request. This will minimize the likelihood of GTH putting itself at risk of being in a “deemed refusal” situation in the future. [96] I recommend that GTH review and prepare the records, applying exemptions the head considers appropriate (including subsection 29(1) of FOIP and subsection 27(1) of HIPA ), and then release the records to the Applicant. The report said nothing about the possible application of ss. 16, 17, 18, and 22 to the records in issue and expressly noted, at paragraph 40, that only ss. 19(1)(

b) and (

c) were considered. [ 22 ] On May 24, 2018, GTH wrote to Mr. Leo to advise that, with respect to paragraph 95 of the Commissioner’s report, it accepted the recommendation that it should ensure more timely management of access requests. With respect to paragraph 96 of the Commissioner’s report, GTH said that it accepted the recommendation but that it would “continue to apply the third party information exemption to certain records”. In other words, GTH seemingly said that it accepted the recommendation to review the records requested by Mr.

Leo, applying such exemptions that it considered appropriate but that, in doing so, it would not accept the Commissioner’s finding that s. 19 of the Act was not applicable. [ 23 ] Mr. Leo did not agree with GTH’s decision as it related to s. 19 . He appealed, as per s. 57 of the Act , to the Court of Queen’s Bench by way of a notice of appeal filed on June 18, 2018. He took issue with what the notice of appeal described as GTH’s decision to continue to apply “the third party information exemption” to certain records. [ 24 ] GTH provided Mr.

Leo with redacted copies of the records responsive to the Access Requests on July 9, 2018. It applied ss. 15(1)(

c) and (k) (law enforcement and investigations), s. 17 (advice from officials), s. 18 (economic or other interests) and s. 22 (solicitor–client privilege) to prevent various records from being disclosed. GTH also declined to release certain information on the basis of s. 29 of the Act and s. 27(1) of HIPA , as per the Commissioner’s recommendation. Significantly, GTH did not invoke s. 19 in relation to any of the records. IV. The Queen’s Bench Appeal [ 25 ] In a preliminary-type ruling, the Chambers judge determined that it was necessary for him to review the records in issue.

See: Leo v Global Transportation Authority , 2018 SKQB 323 [ Preliminary Decision ]. He then conducted an in-camera hearing. [ 26 ] In his decision proper, bearing citation 2019 SKQB 150 , the Chambers judge worked through the records in issue on an exemption-by-exemption basis. In so doing, he dealt with ss. 15(1)(

c) and (k), 17(1)(

a) and (b), 18(1)(f), 22, 24 and 29 in turn. He also considered s. 27 of HIPA . In each case, the Chambers judge found that GTH had properly invoked the exemption in issue. [ 27 ] In the final step of his analysis, the Chambers judge addressed s. 19(1) (a), (

b) and (c). He observed that GTH was not claiming exemptions based on those provisions and that it would therefore fall to Brightenview to establish them. The Chambers judge then went on to say that he did not need to decide whether any of the records in issue fell within the scope of s. 19, as claimed by Brightenview, because all of the records withheld by GTH had been properly redacted on the basis of the exemptions it had relied upon. V. Analysis [ 28 ] Mr. Leo submits that the Chambers judge erred in three ways. First, he says the Chambers judge should not have considered exemptions raised for the first time on appeal. Second, he suggests the Chambers judge misapplied s. 18(1) (

f) of the Act . Third, Mr. Leo argues that the Chambers judge erred by awarding costs against him. I will consider each of these arguments in turn. A. Exemptions raised on appeal [ 29 ] Mr. Leo contends that the only issue properly before the Chambers judge was whether s. 19 of the Act applied to the records

responsive to the Access Requests. He says the Chambers judge should not have considered the propriety of GTH’s decision to deny access by reference to the exemptions found in ss. 15, 17, 18 and 22. Building on these submissions, Mr. Leo contends that, because s. 19 exemptions were the only ones raised with the Commissioner, and because they played no role in GTH’s decision to deny access to the records in issue, all of those records should be released in their entirety. [ 30 ] In order to deal with this submission, it is necessary to examine

Part VII of the Act , titled “Review and Appeal”, in further detail. [ 31 ] Section 49(1) sets out a right for an applicant to apply to the Commissioner for the review of a matter when he or she takes issue with a head’s decision with respect to the release of a record or where a government institution does not respond to an access request. Section 49(1)(

a) and (b), which are relevant here, say this: 49(1) Where: (

a) an applicant is not satisfied with the decision of a head pursuant to

section 7, 12 or 37; … (

b) a head fails to respond to an application for access to a record within the required time … … the applicant or individual may apply in the prescribed form and manner to the commissioner for a review of the matter. [ 32 ] Section 49(3) gives third parties, like Brightenview, a right to apply to the Commissioner for a review in relation to a decision made by a head about whether to grant access to a record:

(3) A third party may apply in the prescribed form and manner to the commissioner for a review of a decision pursuant to

section 37 to give access to a record that affects the interest of the third party. [ 33 ] After completing a review, the Commissioner may prepare a report with his or her recommendation about the matter in issue. Section 55(1) says this: 55(1) On completing a review or investigation, the commissioner may prepare a written report setting out the commissioner’s recommendations with respect to the matter and the reasons for those recommendations. [ 34 ] Following receipt of the Commissioner’s report, the head must make a decision about whether to follow the recommendation.

Section 56 reads as follows: 56 Within 30 days after receiving a report of the commissioner pursuant to subsection 55(1), a head shall: (

a) make a decision to follow the recommendation of the commissioner or any other decision that the head considers appropriate; and (

b) give written notice of the decision to the commissioner and the persons mentioned in subsection 55(2). [ 35 ] The next step in the process is an appeal from the decision of the head to the Court of Queen’s Bench. It is described in s. 57(1): 57(1) Within 30 days after receiving a decision of the head pursuant to

section 56, an applicant or individual or a third party may appeal that decision to the court. On appeal, the Court of Queen’s Bench determines the matter de novo (s. 58(1)(a)). [ 36 ] The proceedings in this case did not respect the

Part VII scheme. As will be recalled, Mr. Leo sought a review by the Commissioner, not because of any substantive GTH decision about the Access Requests, but because of GTH’s delay in responding to the Requests. In so doing, Mr. Leo proceeded under s. 49(1)(b). Then, while he was dealing with Mr. Leo’s application, the Commissioner received, and took up, a separate application for a review from Brightenview, a third party.

Brightenview’s application fell within the scope of s. 49(3). [ 37 ] The Commissioner dealt with these two applications by conducting an investigation and then providing his recommendations as contemplated by s. 55(1). He did all of this in a single report and forwarded that report to GTH, Mr. Leo and Brightenview, as per s. 55(2). As will be recalled, the Commissioner concluded that s. 19 was not applicable to the records in issue. Next, on May 24, 2018, and as required by s. 56, GTH made a decision and advised Mr.

Leo and Brightenview that it would accept the Commissioner’s recommendation to “review and prepare the records, applying exemptions the head considers appropriate” but that in doing so it would continue to apply s. 19 to certain records. [ 38 ] It was from this May 24, 2018, decision that Mr. Leo appealed to the Court of Queen’s Bench pursuant to s. 57(1).

In so doing, as noted earlier, he indicated in his notice of appeal that “the portion of [GTH’s] decision to ‘continue to apply the third party information exemption to certain records’ is being appealed”, i.e., his appeal was limited to matters concerning s. 19 of the Act . [ 39 ] It might have been expected, therefore, that the issue before the Chambers judge would have been the one framed by Mr. Leo in his notice of appeal: were the records responsive to the Access Requests exempt from disclosure because they fell within the scope of s. 19(1) (

b) or (c)? In other words, did those records contain financial or commercial information supplied in confidence by Brightenview to GTH or would the disclosure of those records be reasonably expected to result in financial loss to Brightenview, prejudice the competitive position of Brightenview, or interfere with the contractual or other negotiations of Brightenview?

[ 40 ] However, things unfolded in a way that, as Mr. Leo’s counsel candidly acknowledged in oral argument, was procedurally “odd”. This seems to have been because, between the date when Mr. Leo filed his notice of appeal and the date of the appeal itself, GTH provided him with a response to the Access Requests and made the records in issue available to him.

As explained above, it exempted various records from disclosure by invoking the exemptions set out in ss. 15 (law enforcement and investigation), 17 (advice from officials), 18 (economic or other interests), 22 (solicitor–client privilege), 29 (personal information) and, as well, by relying on HIPA . Somehow, in a way not clearly explained by the record, the propriety of all of these exemption claims was put in play when Mr. Leo’s appeal was presented to the Chambers judge. GTH advises that, at some point, it suggested to Mr.

Leo that he might wish to go back to the Commissioner to have the Commissioner deal with those exemptions. However, at the same time, a review of GTH’s Queen’s Bench brief reveals it argued that the Chambers judge was entitled to consider exemptions beyond those found in s. 19.

The Chambers judge, at paragraph 41 of the Preliminary Decision , appears to have accepted that view and concluded it was appropriate to consider exemptions beyond those reviewed by the Commissioner. [ 41 ] In my respectful view, and regardless of the particulars of how matters unfolded in the Court of Queen’s Bench, the appeal should have been restricted to the question of whether GTH can rely on s. 19 as a basis for not disclosing records responsive to the Access Requests. As explained, the Act clearly contemplates a review and appeal process that follows a very specific track: (

a) an applicant or third party applies to the Commissioner for a review of a matter; (

b) the Commissioner investigates and prepares a report setting out his or her recommendations with respect to the matter; (

c) the head considers the report and decides whether to accept or follow the Commissioner’s recommendations; and (

d) an applicant or a third party who is unsatisfied with the head’s decision about the matter appeals that decision to the Court of Queen’s Bench. This system offers no room for a direct appeal to the Court of Queen’s Bench from the decision of a head, i.e., an appeal that circumvents the application to the Commissioner for a review. But, in effect, that is what happened here. The applicability of ss. 15 , 17 , 18 and 22 of the Act was put before the Chambers judge even though the propriety of relying on those provisions had never been the subject of a review by the Commissioner. [ 42 ] Mr.

Leo’s appeal was expressly limited to the question of the application of s. 19 to the records in issue. The significant plot twist, however, is that GTH ultimately did not base its decision to deny access to the records on s. 19. True, it did indicate in its May 24, 2018, decision that it would apply s. 19 to certain of the records but, when those records were actually released to Mr. Leo on July 9, 2018, no exemptions were claimed based on s. 19. [ 43 ] As explained above, Mr. Leo suggests that this means all of the records responsive to his requests should be released in their entirety.

In my respectful view, this position is illogical and cannot be accepted. This does not require a great deal of explanation. [ 44 ] GTH made a decision about the release of the records covered by the Access Requests. As noted, it applied ss. 15, 17, 18, 22, 24 and 29 of the Act and HIPA in denying access to some of the records. If Mr. Leo was concerned about the validity of the grounds relied on by GTH to justify releasing less than all of what he had asked for, it was incumbent on him to apply to the Commissioner pursuant to s. 49 for a review of GTH’s decision.

Then, if he was dissatisfied with what GTH did in response to the Commissioner’s recommendations, he would have been entitled to appeal that decision to the Court of Queen’s Bench. In other words, Mr. Leo’s argument amounts to an attempt to fundamentally short circuit the process set out in the Act and gain access to GTH records without following the procedural dictates of

Part VII. In effect, he seeks to have GTH’s reliance on non-s.19 exemptions found to be invalid without taking the steps of asking the Commissioner to review their applicability and allowing GTH to consider the Commissioner’s recommendations and make a disclosure decision in light of them. [ 45 ] For its part, GTH argues that ss. 15 , 17 , 18 , 22 and 29 of the Act were properly before the Chambers judge.

It stresses that, when it submitted the records responsive to the Access Requests to the Commissioner on January 24, 2018, it noted all of the exemptions that it planned to apply, not just those falling under s. 19. In an affidavit filed in the Court of Queen’s Bench, Matthew Schroeder, a GTH official, avers that he spoke to the Commissioner’s office prior to January 24, 2018, and was advised that the Commissioner required written submissions from GTH only in respect to the application of s. 19(1) to the records.

In light of all of this, GTH submits that the fact the Commissioner did not examine the applicability of the non-s. 19 exemptions in his report cannot be of any consequence. GTH says that, in its decision letter of May 24, 2018, it referred only to s. 19 because the Commissioner’s silence in his report about the other exemptions had to be taken as meaning that GTH could apply those exemptions as it deemed appropriate. [ 46 ] I am not persuaded by this line of thinking. The Commissioner had been presented with two applications for a review: one from Mr.

Leo concerning the delay in GTH’s handling of the Access Requests and one from Brightenview about the application of s. 19 to the records in issue. It should have been no surprise, therefore, that the Commissioner’s office advised Mr. Schroeder that it only wanted written submissions about s. 19 . That was the sole exemption matter properly before the Commissioner. In the same vein, it is no surprise that the Commissioner’s report did not deal with ss. 16, 17 , 18 , 22 , and 29 , flagged by GTH.

The question of exemptions based on those sections was not in issue because he had not been asked to conduct a review into their application. When, in his report, the Commissioner recommended that GTH “review and prepare the records, applying exemptions the head considers appropriate … and then release the records to [Mr. Leo]”, he cannot be reasonably taken as having given GTH an advance blessing to apply exemptions as it saw fit. Rather, he must be taken as having recommended that GTH complete its review of the records and make decisions about their release in the expectation that, if Mr.

Leo was dissatisfied with those decisions, he could apply pursuant to s. 49 of the Act to have them reviewed. [ 47 ] GTH also suggests, by way of further argument on this issue, that the Chambers judge was entitled to consider issues other than those raised by s. 19 of the Act because, as per s. 58(1) , the proceedings before him were “ de novo ”. In my view, this submission is not persuasive.

The de novo nature of an appeal pursuant to s. 57 speaks to the fact that no deference is owed by a Chambers judge to the decision under appeal and that the record on which the Chambers judge makes his or her decision is to be developed afresh. It does not speak to the scope of the appeal, i.e., to the breadth or nature of the issues that the appeal is to address. As explained,

Part VII of the Act covers all of this in some detail and does not in any way contemplate that, on an appeal to the Court of Queen’s Bench, parties can raise any and all provisions of the Act that bear on the question of whether the records in issue may be released. [ 48 ] There was some sense in the overall submissions of counsel that it was practical and efficient, and therefore proper, for the Chambers judge to deal with all of the exemptions that had been put in play regardless of whatever jurisdictional-type issues might have been afoot. I do not agree with this view of the situation.

The Chambers judge had no authority, in the name of pragmatism or otherwise, to operate outside of the dictates of the Act .

[ 49 ] For its part, Brightenview made some general points about the proper

interpretation of s. 19 and suggested that the question of its application should go back to the Court of Queen’s Bench to be considered. As explained, this line of thinking is misplaced. GTH did not exempt any records from disclosure on the strength of s. 19 and, as a result, there is no live issue concerning s. 19. In other words, there is nothing to remit to the Court of Queen’s Bench for further consideration.

Brightenview, if it had so chosen, could have moved at the appropriate time and in a procedurally appropriate way to contend that GTH should have applied s. 19 to some of the records that it was prepared to release to Mr. Leo. But, Brightenview apparently has never had such concerns. It asks only that Mr. Leo’s appeal be dismissed and does not suggest that s. 19 should have been applied to exempt additional records from disclosure. [ 50 ] In the end, therefore, while I agree with Mr.

Leo that the Chambers judge had no authority to consider the question of whether the exemptions prescribed by ss. 15 , 17 , 18 and 22 of the Act apply to the records in issue here, I do not accept that this means he is entitled to access those records in their entirety. The exemptions claimed by GTH pursuant to ss. 15 , 17 , 18 and 22 have not been found to be invalid by way of a procedurally proper process and therefore they remain intact. GTH did not exempt any records from disclosure on the strength of s. 19. The application of that

section was, and remains, a moot issue as far as Mr. Leo is concerned. B.

Section 18 [ 51 ] GTH relied on the exemptions set out in s. 18(1) (

f) of the Act as a basis for refusing to disclose some of the records sought by Mr. Leo. Section 18(1) (

f) reads as follows: 18(1) A head may refuse to give access to a record that could reasonably be expected to disclose: … (

f) information, the disclosure of which could reasonably be expected to prejudice the economic interest of the Government of Saskatchewan or a government institution[.] [ 52 ] The Chambers judge conducted an in camera review of the original versions of the records in issue and compared them to the redacted versions to which Mr. Leo had been given access. He concluded that, in each instance where GTH had invoked s. 18(1) (f), the record in question fell within the scope of that provision. Mr.

Leo submits that the Chambers judge erred in his application of s. 18(1) (f). [ 53 ] In view of my conclusion that the exemptions concerning s. 19 of the Act were the only matters properly before the Chambers judge, it is not necessary to deal with Mr. Leo’s s. 18(1) (

f) arguments in order to resolve this appeal. However, because the issues relating to s. 18(1) (

f) were fully argued, and because the Chambers judge’s approach to that provision raises a point of consequence, some comment is nonetheless in order. [ 54 ] Mr. Leo is particularly concerned about those aspects of the analysis of the Chambers judge where he appeared to suggest that s. 18(1) (

f) was engaged because the release of information would, in and of itself, harm Brightenview’s relationship with GTH and because the application of the Act had been a source of concern for other possible GTH clients. The relevant parts of the Chambers judge’s decision read as follows: [58] GTH also has a significant interest in maintaining its ongoing business relationship with Brightenview. Mr. Schroeder deposed, and I accept, that release of the withheld information could reasonably be expected to jeopardize this relationship. … … [60] During the in camera hearing, I heard evidence from Bryan Richards and Mr.

Schroeder. They testified about specific instances where potential GTH clients either backed out of deals, or expressed concerns about entering into arrangements with GTH because of the impact it would have on them if GTH were required to disclose sensitive business information. For these potential clients, there would not be a similar risk of such a disclosure requirement if they were dealing with a private entity. [61] Mr.

Richards provided evidence that such concerns on the part of various prospective clients led to the loss of deals which would have generated tens of millions of dollars in land sales for GTH, as well as the loss of ancillary benefits to the province of Saskatchewan, in the form of employment, taxes, and the attraction of other investments. [62] Based on the testimony provided during the in camera hearing, and the evidence in Mr. Schroeder’s affidavit, I am satisfied that there is more than a mere possibility that release of the information which has been withheld on the basis of s. 18(1)(

f) would prejudice the economic interests of the Government of Saskatchewan or of GTH. There is evidence of concrete examples where the mere prospect of the release of such information caused clients to take their business elsewhere. The actual release of this information could hardly do otherwise. [ 55 ] I agree with Mr. Leo that this is not a valid application of s. 18(1) (f). Individuals or entities doing business with a government institution are required to take the access to information regime prescribed by the Act as a given.

The possibility of information being disclosed pursuant to the Act is an unavoidable part of the environment in which they are obliged to operate. [ 56 ] Brightenview might well be displeased with GTH if certain information is disclosed under the Act . However, that displeasure cannot be seen as something “expected to prejudice the economic interest of … [GTH]” within the meaning of s. 18(1) (f). In other words, the application of s. 18(1) (

f) does not depend on whether a party doing business with a government institution will, or will not, be irritated or made unhappy by the disclosure of records. The Act specifically addresses the release of third party information in s. 19. That is the vehicle by which the interests of third parties, like Brightenview, are accommodated. [ 57 ] In a similar vein, the fact that potential GTH clients backed out of deals or expressed reluctance to enter into agreements because of concerns about the Act does not engage s. 18(1) (

f) either. The Legislature, by enacting the Act , has prescribed the rules of the game. Those wishing to do business with a government institution must play by those rules. Negative reactions to the Act , and the possibility of information being disclosed pursuant to it, cannot be what the Legislature had in mind when it referred to “prejudice the

economic interest of the Government of Saskatchewan or a government institution”. If that were the case, s. 18(1)(

f) would merely operateat the whim of third parties doing business with the Government and government institutions. [58] I choose to offer no further comment about this aspect of the appeal. C. Costs [59] Mr. Leo argues that the award of costs made against him by the Chambers judge should be set aside. There are three layers tohis submission. First, he says that the Queen’s Bench appeal should have been seen as one where he achieved mixed success. Second, hecontends costs should not have been awarded in a situation where GTH succeeded on the basis of arguments he could not have reasonablyanticipated. Third, Mr.

Leo also suggests that, given the basic nature of a Queen’s Bench appeal under the Act, strong policyconsiderations made it inappropriate for the Chambers judge to award costs against him. I find it necessary to deal only with Mr. Leo’ssecond argument. [60] Mr. Leo submits that GTH succeeded in the Court of Queen’s Bench on the strength of grounds of appeal, i.e., exemptionsunder the Act, that he could not reasonably have anticipated and that, therefore, costs should not have been awarded against him. In thisregard, Mr.

Leo relies on Moose Jaw (City) v Terrell (Rural Municipality) (1929), (SK CA), [1930] 2 DLR 81 (SaskCA), a case where the Court declined to award costs against a losing appellant in circumstances where the respondent had succeeded onthe strength of an issue raised for the first time on appeal and of which the appellant had not had notice. [61] This argument is somewhat difficult to assess because it is unclear from the record how the proceedings got off track in theCourt of Queen’s Bench.

In other words, it is challenging to assess because it is unclear exactly how the Chambers judge came to considerss. 15, 17, 18, 22, 24 and 29 of the Act when Mr. Leo’s appeal was founded only on s. 19. [62] In any event, in light of my conclusion about the proper scope of the Queen’s Bench appeal, the fact is that Mr. Leo wasunsuccessful in the Court of Queen’s Bench because the Chambers judge relied on, or assessed, exemptions that were not properly beforehim. In and of itself, this suggests that Mr.

Leo should not have had a costs award made against him in relation to those proceedings.However, as explained above, Mr. Leo was before the Chambers judge advancing an appeal grounded on s. 19 of the Act even though, bythat point in the timeline, it was apparent that GTH had not applied s. 19 to any of the records in issue. His appeal was therefore effectivelymoot. This tends to suggest that an award of costs should have been made against him. [63] All things considered, I find that this is a situation where it would be appropriate for both Mr.

Leo, GTH and Brightenview toeach bear their own costs in the Court of Queen’s Bench. VI. Conclusion [64] I conclude that Mr. Leo’s appeal in relation to his right to access records held by GTH must be dismissed. I would, however,grant his appeal in relation to costs, set aside the costs order made by the Chambers judge, and substitute for it an order that all sides beartheir own costs. [65] In this Court, none of the parties was successful in advancing the substance of their arguments about the key issue, access to therecords.

As a result, I would make no order as to costs. “Richards C.J.S.” Richards C.J.S.I concur. “Schwann J.A.” Schwann J.A.I concur. “Tholl J.A.” Tholl J.A.