Court Cases

The citations are linked to the Decision Reports on Canadian Legal Information Institute (CANLII).

Express Canada Inc. v Memorial University of Newfoundland, 2015 NLCA 52 opens in new window opens in new window (CanLII)

10/30/2015

The Court of Appeal dismissed an appeal by Corporate Express of a decision of the Trial Division requiring Corporate Express to provide records to the Third Respondent (Dicks & Company Ltd.). In its decision, the Court of Appeal stated that the provisions of the ATIPPA were enacted for the purposes of making public bodies more accountable. The Court said the Trial Judge did not err in ruling that the requested information was not excepted from disclosure as information supplied in confidence within the meaning of section 27(1)(b) of the ATIPPA. The Court agreed with the Trial Judge that in order to substantiate a claim under section 27(1)(c) that disclosure of the requested information would cause Corporate Express significant financial loss or harm its competitive position, there must be some empirical, statistical or financial evidence and no such evidence was provided by Corporate Express. The Court indicated that disclosure of the requested information would put prospective tender bidders on a more equal footing and this would ultimately make Memorial University, as a public institution, more accountable in its expenditure of public monies. Accordingly, the Court dismissed the appeal, affirmed the order of the Trial Judge awarding Dicks & Company Ltd.costs in the Trial Division and awarded Dicks costs in the Court of Appeal.

Section 27

Geophysical Service Incorporated v Martin, 2015 NLCA 36 (CanLII) opens in new window opens in new window

8/3/2015

The Court of Appeal granted the Commissioner's application to intervene in an appeal by Geophysical Service Incorporated (GSI) of a Trial Division decision which stayed an appeal by GSI under section 60 of the ATIPPA in relation to an access request made by GSI to Nalcor (Ed Martin is president of Nalcor). Nalcor opposed the application to intervene. The Court determined that because the Commissioner has a statutory right to appeal in the Trial Division pursuant to section 61(2) of the ATIPPA, it had a right to intervene at any stage until the proceedings have been terminated or finally resolved. Therefore, the Commissioner had a statutory right to intervene in accordance with Rule 7.05(1)(c) of the Rules of the Supreme Court, 1986. The Court further ruled that the Commissioner had a right to intervene under Rule 7.05(1)(a) as a person with an interest in the subject matter of the proceeding.

Sections 60 and 61(2)

Corporate Express Canada, Inc. v. The President and Vice-Chancellor of Memorial University of Newfoundland, Gary Kachanoski, 2014 CanLII opens in new window opens in new window 55800 (NL SCTD)

09/19/2014

This appeal to the Trial Division pursuant to section 60(1) involves the application of section 27. The presiding justice summarized the primary issue as being a determination of whether Memorial University, as a public body, should refuse to disclose certain records pertaining to its award of tender for office supplies because it would be harmful to the business interests of Corporate Express Canada, Inc. The justice ruled that the claim that certain information requested from the public body is exempt from disclosure because it would be harmful to the Applicants business interests was dismissed. The justice determined that the party seeking the benefit of a statutory exemption to access to information bears the burden of demonstrating that the exemption applies. The justice indicated that in the context of procurement and use of public funds, the disclosure of the requested information was in step with the fundamental purpose of the ATIPPA, to hold the public body accountable. The justice determined that Corporate Express failed to provide clear, convincing or cogent evidence to substantiate that the requested information was either: 1. supplied in confidence within the meaning of s. 27(1)(b) of the ATIPPA, or 2. harmful to its competitive position or would result in financial loss within the meaning of s. 27(1)(c)(i) or (iii) of the ATIPPA.

Sections 3, 27 and 60(1)

Information and Privacy Commissioner (Newfoundland and Labrador) v. Newfoundland and Labrador (Environment and Conservation), 2014 CanLII opens in new window opens in new window 40089 (NL SCTD)

7/25/2014

This was an appeal to the Trial Division by the Commissioner, pursuant to section 60(1.1)(b), of a decision by the Minister of Environment and Conservation refusing access on the basis that the responsive records were subject to solicitor and client privilege pursuant to section 21 of the ATIPPA. The Trial Division justice indicated that the responsive records were provided to the court in a sealed envelope and reviewed only by the presiding justice. The justice stated that section 64(1) imposes a statutory burden on the Minster to establish that the Applicant has no right of access to the responsive records. The justice noted that the procedure to be followed was for the presiding justice to conduct an objective assessment to determine whether the records were subject to solicitor and client privilege. Following a review of the responsive records, the justice determined that the records met the well-established three-part test from the Supreme Court of Canada in Solosky v. The Queen and were, therefore, subject to solicitor and client privilege.

ss. 21 and 60(1.1)(b)

Ring v. Memorial University of Newfoundland, 2014 CanLII opens in new window opens in new window 12849 (NL SCTD)

3/24/2014

This was an appeal to the Trial Division by the Commissioner, pursuant to section 61(1), of a decision by Memorial University not to follow a recommendation of the Commissioner to release certain records pertaining to a observational study of MS patients. The Commissioner had determined that certain of the responsive records were not 'research information' within the meaning of section 5(1)(h). A justice of the Trial Division, following two previous decisions of the Trial Division, decided that the Commissioner has no jurisdiction over section 5 records and cannot compel their production for review to verify a claim under section 5. The justice further ruled that the Commissioner cannot review section 5 records and cannot make a recommendation to a public body regarding their release.

ss. 5 and 61(1)

Newfoundland and Labrador (Information and Privacy Commissioner) v. College of the North Atlantic, 2013 CanLII 83886 (NL SCTD) opens in new window opens in new window

12/24/2013

This was an appeal to the Trial Division by the Commissioner, pursuant to section 60(1.1)(b), of a decision by the College of the North Atlantic (CNA) refusing access on the basis that the responsive records were subject to solicitor and client privilege pursuant to section 21 of the ATIPPA. The responsive records consisted of invoices for legal services provided to CNA in relation to matters involving the Applicant. The Chief Justice following a review of the responsive records ruled that such records are presumptively subject to solicitor and client privilege. The Chief Justice determined that in the context of the ongoing litigation between CNA and the Applicant the presumption was not rebutted because there remained a risk that a diligent inquirer could on the basis of the requested information draw inferences about the communications between CNA and its lawyers concerning the litigation.

Sections 21 and 60(1.1)(b)

Oleynik v. Newfoundland and Labrador (Information and Privacy Commissioner), 2012 NLCA 13 (CanLII) opens in new window opens in new window

2012-02-28

The Court of Appeal dismissed the appeal of the Trial Judge's decision denying applications for mandamus and certiorari. The Court stated that the Appellant was ultimately seeking a review of the Public Body's response to the Commissioner's Report and the manner in which the Public Body had carried out the search for records responsive to the Appellant's access to information request. The Court ruled that the proper avenue for the Appellant to seek redress was through an appeal to the Trial Division under section 60 of the ATIPPA. Note: The Appellant's Application for Leave to Appeal to the Supreme Court of Canada was dismissed with costs.

Sections 60 and 62

Information and Privacy Commissioner v. Newfoundland and Labrador (Business), 2012 NLTD 28 (CanLII) opens in new window opens in new window

2012-02-24

The Trial Division dismissed the Commissioner's application for a declaration that he was entitled to review records in the custody or control of the Respondent for the purpose of determining the appropriateness of the section 5 exemption claimed. The Court ruled that the declaration sought had been refused in a previous decision in Newfoundland and Labrador (AG) v. Newfoundland and Labrador (OIPC), 2010 NLTD 19 and the matter is res judicata. The Court stated that, in any event, the wording of the ATIPPA leads to the conclusion that records taken out of the operation of the Act by virtue of Part I are not subject to production to and review by the Commissioner and any review of a public body's determination that requested records are of a type enumerated in s. 5 is a matter, as the legislation presently stands, for the Court.

Sections 5 and 52

Oleynik v. Newfoundland and Labrador (Information and Privacy Commissioner), 2011 NLCA 73 (CanLII) opens in new window opens in new window

2011-11-18

The Court of Appeal dismissed an application by the Appellant seeking an order requiring the Commissioner to make a return of the documents and exhibits that formed the basis of an investigation conducted by the Commissioner in relation to a Request for Review filed by the Appellant with the Commissioner.

Section 43

Newfoundland and Labrador (Attorney General) v. Newfoundland and Labrador (Information and Privacy Commissioner), 200901T1345 (CanLII) opens in new window opens in new window

2011-10-26

A Declaration by an applications judge that s. 52 of the Access to Information and Protection of Privacy Act does not oblige the Department of Justice to produce for review certain records requested by the Commissioner was set aside. The Attorney-General was directed by the Court of Appeal to deliver the requested records to the Commissioner for review and verification of the claim of solicitor and client privilege.

Section 21

Pomerleau Inc. v. Smart, 2011 NLTD 105 (CanLII) opens in new window opens in new window

2011-08-05

Supreme Court of Newfoundland and Labrador, Trial Division Procedure to be followed by a Public Body When Claiming Discretionary Exceptions

Sections 60 and 63(1)

Anton Oleynik vs Newfoundland and Labrador (Office of the Information and Privacy Commissioner) (Re), 2011 NLTD(G) 34 opens in new window opens in new window

2011-03-01

Supreme Court of Newfoundland and Labrador, Trial Division made a request to Memorial University seeking access to email communications containing his name, sent to or received from a particular institutional address, over a particular period of time.

S.N.L. 2002, c. A-1.1.

Newfoundland and Labrador (Attorney General) v. Newfoundland and Labrador (Information and Privacy Commissioner), 2010 NLTD 31 opens in new window opens in new window

2010-02-16

Supreme Court of Newfoundland and Labrador, Trail Division

solicitor-client privilege; rule of evidence; interpretation; records; substantive

3(1)(e), 7(2), 21, 43, 52(2), (3), 64(1)

"Striking the Balance, the Right to Know and the Right to Privacy" -by the Freedom of Information Review Committee

McBreairty v. College of the North Atlantic, 2010 NLTD 28 opens in new window opens in new window

2010-02-12

Supreme Court of Newfoundland and Labrador, Trail Division

solicitor-client privilege; e-mails; e-mail files; withheld; legal advice

3(1), 5(1), 7(1)(2), 8, 9, 12(1)(a)(c), 13, 20(1)(a), 20(2)(a), (f), (j), (l), (m), 21(1)(a), 30(1), 30(2)(a), (b), (f) and (h), 43(3), 55, 61(2), 62(1)(2), 63(1), 64(1)

Newfoundland and Labrador (Attorney General) v. Newfoundland and Labrador (Information and Privacy Commissioner), 2010 NLTD 19 opens in new window opens in new window

2010-02-03

Supreme Court of Newfoundland and Labrador, Trial Division

records; public body; information; access; commissioner

3(1)(e), 5(1), 5(1)(k), 5(2), 22(1)(a)(n), 30(1), 43(1), 52(1)(2)(3)(4), 62, 63

Newfoundland and Labrador (Office of the Information and Privacy Commissioner) and Professional Diving Contractors (1st respondent) and Minister of INTRD (2nd respondent) (Re), 2008 NLCA 29 opens in new window opens in new window

2008-06-10

Supreme Court of Newfoundland and Labrador, Court of Appeal

extension of time; costs; time within which to file The Commissioner seeks an extension of time within which to file a notice of appeal.

McBreairty v. Information and Privacy Commissioner, 2008 NLTD 65 opens in new window opens in new window

2008-04-15

Supreme Court of Newfoundland and Labrador, Trial Division access to records; public body; requests for review; active files; reasonableness

3(1)(a) and (e), 45(1)(a)(c), 60

Professional Diving Contractors Ltd. v. The Minister of Innovation, Trade & Rural Development et al, 2008 NLTD 7 opens in new window opens in new window

2008-01-22

Supreme Court of Newfoundland and Labrador, Trial Division

public body; follow the recommendation; notice; time; period. cited by 1 case

9, 46(1), 50, 50(2), 60, 60(1), (8)

Court Cases - Other Cases

Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 CanLII). opens in new window opens in new window

Supreme Court Of Canada

The Court discussed the exception to disclosure set out in section 20(1) of the federal Access to Information Act dealing with third party information, which is comparable to the exception to disclosure in section 27(1) of the ATIPPA dealing with disclosures harmful to the business interests of a third party.

The Court also discussed the notice required to be given to third parties pursuant to section 27 of the Access to Information Act and the opportunity given to third parties to make representations regarding the disclosure pursuant to section 28. Sections 27 and 28 of the Access to Information Act are comparable to sections 28 and 29 of the ATIPPA.

Blank v. Canada (Minister of Justice), 2006 SCCÂ 39 ; [2006] 2 S.C.R. 319. opens in new window opens in new window

Supreme Court Of Canada

Law of professions; Barristers and solicitors; Solicitor; client privilege; Litigation privilege; Distinction between solicitor; client privilege and litigation privilege; Nature, scope and duration of litigation privilege.

Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815. opens in new window opens in new window

Supreme Court Of Canada

Access to information; Access to records; Exemptions; Minister refusing to disclose records relating to murder case, claiming exemptions under freedom of information legislation; Whether constitutional guarantee of freedom of expression protects access to information; If so, in what circumstances; Canadian Charter of Rights and Freedoms, s. 2(b); Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, ss. 14, 19, 23.

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403. opens in new window opens in new window

Supreme Court Of Canada

Access to information; Privacy; Personal information; Request made for sign-in logs of government department; Personal identifying features deleted from information; Whether information should be disclosed; Whether part of information can be withheld because “personal information”; Access to Information Act

Canada (Privacy Commissioner) v. Blood Tribe Department of Health, [2008] 2 S.C.R. 574, 2008 SCC 44. opens in new window opens in new window

Supreme Court of Canada

Privacy; Investigations of complaints; Powers of Privacy Commissioner; Production of documents; Solicitor; client privilege; Dismissed employee filing complaint with Commissioner and seeking access to her personal employment information; Employer claiming solicitor client privilege over some documents; Whether Commissioner can compel production of privileged documents; Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, s. 12.

School District No. 49 (Central Coast) v. British Columbia (Information and Privacy Commissioner), 2012 BCSC 427 (CanLII). opens in new window opens in new window

Supreme Court of British Columbia

The Court dealt with the issue of whether the B.C. Commissioner had jurisdiction to adjudicate claims of solicitor-client privilege where a public body had refused disclosure based on the solicitor-client exception to disclosure set out in section 14 of B.C.'s Freedom of Information and Protection of Privacy Act. The Court in reaching the conclusion that the Commissioner had such jurisdiction relied on the decision of the Newfoundland and Labrador Court of Appeal in Newfoundland and Labrador (Attorney General) v. Newfoundland and Labrador (Information and Privacy Commissioner), 200901T1345 (CanLII).

The Court in discussing whether the B.C. Commissioner had the power to compel the production of records for which solicitor-client privilege had been claim adopted the reasoning of the Newfoundland and Labrador Court of Appeal in Newfoundland and Labrador (Attorney General) v. Newfoundland and Labrador (Information and Privacy Commissioner), 200901T1345 (CanLII).