ALBERTA LAW REPORTS Fifth Series Reports of Selected Cases from the Courts of Alberta and Appeals

VOLUME 53 (Cited 53 Alta. L.R. (5th))

SELECTION EDITOR Walter J. Watson, B.A., LL.B.

ASSOCIATE EDITORS E. Mirth, Q.C. E.H. Molstad, Q.C. A.D. Nielsen, B.A., LL.B., Q.C.

CARSWELL EDITORIAL STAFF Cheryl L. McPherson, B.A.(HON.) Director, Primary Content Operations Audrey Wineberg, B.A.(HON.), LL.B. Product Development Manager Jennifer Weinberger, B.A.(HON.), J.D. Supervisor, Legal Writing Sharon Yale, LL.B., M.A. Supervisor, Legal Writing Melissa Dubien Content Editor ALBERTA LAW REPORTS is published 18 times per year. Subscription Alberta Law Reports est publié 18 fois par année. L’abonnement est de rate $379.00 per bound volume including parts. Indexed: Carswell’s Index to 379 $ par volume relié incluant les fascicules. Indexation: Index a` la docu- Canadian Legal Literature. mentation juridique au Canada de Carswell.

Editorial Offices are also located at the following address: 430 rue St. Pierre, Le bureau de la rédaction est situé a` Montréal — 430, rue St. Pierre, Mon- Montréal, Québec, H2Y 2M5. tréal, Québec, H2Y 2M5.

NOTICE AND DISCLAIMER: All rights reserved. No part of this publica- MISE EN GARDE ET AVIS D’EXONERATION´ DE RESPON- tion may be reproduced, stored in a retrieval system, or transmitted, in any SABILITE´ : Tous droits réservés. Il est interdit de reproduire, mémoriser sur form or by any means, electronic, mechanical, photocopying, recording or un système d’extraction de données ou de transmettre, sous quelque forme ou otherwise, without the prior written consent of the publisher (Carswell). par quelque moyen que ce soit, electronique´ ou mécanique, photocopie, enre- gistrement ou autre, tout ou partie de la présente publication, a` moins d’en avoir préalablement obtenu l’autorisation ecrite´ de l’éditeur, Carswell. A licence, however, is hereby given by the publisher: Cependant, l’éditeur concède, par le présent document, une licence :

(a) to a lawyer to make a copy of any part of this publication to give to a a) a ` un avocat, pour reproduire quelque partie de cette publication pour judge or other presiding officer or to other parties in making legal submis- remettre a` un juge ou un autre officier-pr´esident ou aux autres parties dans sions in judicial proceedings; une instance judiciaire;

b) a` un juge ou un autre officier-président, pour produire quelque partie de (b) to a judge or other presiding officer to produce any part of this publication cette publication dans une instance judiciaire; ou in judicial proceedings; or c) a` quiconque, pour reproduire quelque partie de cette publication dans le cadre de délibérations parlementaires. (c) to anyone to reproduce any part of this publication for the purposes of « Instance judiciaire » comprend une instance devant une cour, un tribunal ou parliamentary proceedings. une personne ayant l’autorité de décider sur toute chose affectant les droits ou les responsabilitiés d’une personne. “Judicial proceedings” include proceedings before any court, tribunal or per- Ni Carswell ni aucune des autres personnes ayant participé a` la réalisation et son having authority to decide any matter affecting a person’s legal rights or a` la distribution de la présente publication ne fournissent quelque garantie liabilities. que ce soit relativement a` l’exactitude ou au caractère actuel de celle-ci. Il est entendu que la présente publication est offerte sous la réserve expresse que ni Carswell and all persons involved in the preparation and sale of this publica- Carswell, ni le ou les auteurs de cette publication, ni aucune des autres per- tion disclaim any warranty as to accuracy or currency of the publication. This sonnes ayant participé a` son elaboration´ n’assument quelque responsabilité publication is provided on the understanding and basis that none of Carswell, que ce soit relativement a` l’exactitude ou au caractère actuel de son contenu the author/s or other persons involved in the creation of this publication shall ou au résultat de toute action prise sur la foi de l’information qu’elle be responsible for the accuracy or currency of the contents, or for the results renferme, ou ne peuvent etreˆ tenus responsables de toute erreur qui pourrait of any action taken on the basis of the information contained in this publica- s’y etreˆ glissée ou de toute omission. tion, or for any errors or omissions contained herein. La participation d’une personne a` la présente publication ne peut en aucun cas etreˆ considérée comme constituant la formulation, par celle-ci, d’un avis No one involved in this publication is attempting herein to render legal, ac- juridique ou comptable ou de tout autre avis professionnel. Si vous avez counting, or other professional advice. If legal advice or other expert assis- besoin d’un avis juridique ou d’un autre avis professionnel, vous devez tance is required, the services of a competent professional should be sought. retenir les services d’un avocat ou d’un autre professionnel. Les analyses The analysis contained herein should in no way be construed as being either comprises dans les présentes ne doivent etreˆ interprétées d’aucune fa¸con official or unofficial policy of any governmental body. comme etant´ des politiques officielles ou non officielles de quelque organ- isme gouvernemental que ce soit.

8 The paper used in this publication meets the minimum requirements of 8 Le papier utilis´e dans cette publication satisfait aux exigences minimales American National Standard for Information Sciences — Permanence of Pa- de l’American National Standard for Information Sciences — Permanence of per for Printed Library Materials, ANSI Z39.48-1984. Paper for Printed Library Materials, ANSI Z39.48-1984.

ISSN 0703-3117 ISBN 978-0-7798-1838-9 Printed in Canada by Thomson Reuters

CARSWELL, A DIVISION OF THOMSON REUTERS CANADA LIMITED One Corporate Plaza Customer Relations 2075 Kennedy Road Toronto 1-416-609-3800 Toronto, Ontario Elsewhere in Canada/U.S. 1-800-387-5164 M1T 3V4 Fax 1-416-298-5082 www.carswell.com E-mail www.carswell.com/email BTC Properties II Ltd. v. Calgary (City) 223

[Indexed as: BTC Properties II Ltd. v. Calgary (City)] The City of Calgary (Appellant / Applicant) and The Municipal Government Board and BTC Properties II Ltd. also known as “BCT Properties II Ltd.” (Respondent / Respondent) Alberta Court of Appeal Docket: Calgary Appeal 1101-0036-AC 2012 ABCA 13 Ronald Berger, Clifton O’Brien, Patricia Rowbotham JJ.A. Heard: November 8, 2011 Judgment: January 16, 2012 Municipal law –––– Municipal tax assessment — Valuation — Uniformity, equity and equality — Miscellaneous –––– Prior to 2003, it was not city’s practice to assess business tax on parking space or parking facilities associated with office buildings and rented to tenants of those buildings — Practice changed as result of Municipal Government Board’s (MGB) decision in which various parking operators challenged 2002 business tax assessments relating to numerous parking facilities operated by them — One basis for challenge was that assessments were inequitable — MGB found systemic inequity and as result city began assessing both parking operators and owners/landlords of office building parking facilities for 2003 business tax — BTC and numerous other operators and owners/landlords appealed 2003 assessments, and like assessments for 2004, 2005 and 2006 taxation years to Calgary Assessment Review Board — On further appeal to MGB, BTC’s 2004 assessments were affirmed because of lack of evidence to contrary — MGB granted BTC’s 2005 and 2006 appeals, after BTC provided more evidence, finding that BTC did not operate parking business in parking facilities — City brought unsuccessful application for judicial review — City appealed — Appeal dismissed — Reviewing judge correctly selected and applied standards of review to each issue — MGB’s reasons were within range of possible outcomes which were defensible both on facts and law — MGB was reasonable in finding that BTC was not operating business in parking facilities, and it was not necessary to consider paramount occupancy principle. Municipal law –––– Municipal tax assessment — Valuation — Particular property — Miscellaneous –––– Prior to 2003, it was not city’s practice to assess business tax on parking space or parking facilities associated with office buildings and rented to tenants of those buildings — Practice changed as result of Municipal Government Board’s (MGB) decision in which various parking operators challenged 2002 business tax assessments relating to numerous parking facilities operated by them — One basis for challenge was that assessments were inequitable — MGB found systemic inequity and as result city began as- 224 ALBERTA LAW REPORTS 53 Alta. L.R. (5th) sessing both parking operators and owners/landlords of office building parking facilities for 2003 business tax — BTC and numerous other operators and owners/landlords appealed 2003 assessments, and like assessments for 2004, 2005 and 2006 taxation years to Calgary Assessment Review Board — On further appeal to MGB, BTC’s 2004 assessments were affirmed because of lack of evidence to contrary — MGB granted BTC’s 2005 and 2006 appeals, after BTC provided more evidence, finding that BTC did not operate parking business in parking facilities — City brought unsuccessful application for judicial review — City appealed — Appeal dismissed — Reviewing judge correctly selected and applied standards of review to each issue — MGB’s reasons were within range of possible outcomes which were defensible both on facts and law — MGB was reasonable in finding that BTC was not operating business in parking facilities, and it was not necessary to consider paramount occupancy principle. Municipal law –––– Municipal tax assessment — Valuation — Particular interest in land — Leasehold — Miscellaneous –––– Prior to 2003, it was not city’s practice to assess business tax on parking space or parking facilities associated with office buildings and rented to tenants of those buildings — Practice changed as result of Municipal Government Board’s (MGB) decision in which various parking operators challenged 2002 business tax assessments relating to numerous parking facilities operated by them — One basis for challenge was that assessments were inequitable — MGB found systemic inequity and as result city began assessing both parking operators and owners/landlords of office building parking facilities for 2003 business tax — BTC and numerous other operators and owners/landlords appealed 2003 assessments, and like assessments for 2004, 2005 and 2006 taxation years to Calgary Assessment Review Board — On further appeal to MGB, BTC’s 2004 assessments were affirmed because of lack of evidence to contrary — MGB granted BTC’s 2005 and 2006 appeals, after BTC provided more evidence, finding that BTC did not operate parking business in parking facilities — City brought unsuccessful application for judicial review — City appealed — Appeal dismissed — Reviewing judge correctly selected and applied standards of review to each issue — MGB’s reasons were within range of possible outcomes which were defensible both on facts and law — MGB was reasonable in finding that BTC was not operating business in parking facilities, and it was not necessary to consider paramount occupancy principle. Cases considered: Altus Group Calgary v. Calgary (City) (2006), 2006 CarswellAlta 2319 (Alta. Mun. Gov. Bd.) — considered Baker v. Canada (Minister of Citizenship & Immigration) (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, [1999] S.C.J. No. 39 (S.C.C.) — referred to BTC Properties II Ltd. v. Calgary (City) 225

Clifford v. Ontario (Attorney General) (2009), 256 O.A.C. 354, 93 Admin. L.R. (4th) 131, 2009 ONCA 670, 2009 CarswellOnt 5595, 2009 C.E.B. & P.G.R. 8359, 98 O.R. (3d) 210, 312 D.L.R. (4th) 70, 188 L.A.C. (4th) 97, 76 C.C.P.B. 184, [2009] O.J. No. 3900 (Ont. C.A.) — referred to Clifford v. Ontario (Attorney General) (2010), 270 O.A.C. 395 (note), 2010 CarswellOnt 439, 2010 CarswellOnt 440, 405 N.R. 388 (note), [2009] S.C.C.A. No. 461 (S.C.C.) — referred to Gottardo Properties (Dome) Inc. v. Toronto (City) (1998), (sub nom. Gottardo Properties (Dome) Inc. v. Regional Assessment Commissioner, Region No. 9) 111 O.A.C. 272, 162 D.L.R. (4th) 574, 46 M.P.L.R. (2d) 309, 1998 Cars- wellOnt 3004, [1998] O.J. No. 3048 (Ont. C.A.) — followed Macdonald v. Mineral Springs Hospital (2008), 2008 ABCA 273, 2008 CarswellAlta 1089, 295 D.L.R. (4th) 609, 94 Alta. L.R. (4th) 317, 437 A.R. 7, 433 W.A.C. 7 (Alta. C.A.) — referred to Moll v. College of Psychologists (Alberta) (2011), 2011 ABCA 110, 2011 CarswellAlta 517, 42 Alta. L.R. (5th) 286, 20 Admin. L.R. (5th) 1, [2011] 8 W.W.R. 686 (Alta. C.A.) — considered N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62 (S.C.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed R. v. M. (R.E.) (2008), [2008] 11 W.W.R. 383, 83 B.C.L.R. (4th) 44, [2008] 3 S.C.R. 3, 2008 CarswellBC 2037, 2008 CarswellBC 2038, 2008 SCC 51, 235 C.C.C. (3d) 290, 60 C.R. (6th) 1, 297 D.L.R. (4th) 577, 380 N.R. 47, 439 W.A.C. 40, 260 B.C.A.C. 40, [2008] S.C.J. No. 52 (S.C.C.) — considered Tonko Development Corp. v. Calgary (City) (2003), 2003 CarswellAlta 2329 (Alta. Mun. Gov. Bd.) — considered Statutes considered: Municipal Government Act, R.S.A. 2000, c. M-26 s. 371(1) — considered s. 374(1)(b)(i.1) — considered 226 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

s. 374(1)(c)(i.1) — considered

APPEAL by municipality from judgment reported at BTC Properties II Ltd. v. Calgary (City) (2010), 19 Admin. L.R. (5th) 283, 77 M.P.L.R. (4th) 120, 37 Alta. L.R. (5th) 347, 2010 CarswellAlta 2277, 2010 ABQB 719, (sub nom. Calgary (City) v. Municipal Government Board (Alta.)) 504 A.R. 1 (Alta. Q.B.), which dismissed application for judicial review.

S.E.A. Trylinski, M.A. Bendfeld, for Appellant A. Sims, Q.C., for Respondent, Municipal Government Board G.J. Ludwig, J. Laycraft, Q.C., for Respondent, BTC Properties II Ltd. also known as “BCT Properties II Ltd.”

Per curiam: I. Introduction 1 The respondent BTC Properties II Ltd (BTC) is in the business of leasing property. It owns three office buildings in Calgary which are en- tirely leased. The underground parking facilities in the buildings are rented exclusively to the tenants who pay for parking on a monthly basis. There is no entrance or exit fee for parking. The issue on appeal is the proper business tax assessment for the parking spaces in the three buildings. The Municipal Government Board (the Board) found that BTC was not operating a business in the parking facilities and therefore was not liable to pay business tax. The reviewing judge found the Board’s decision to be reasonable and dismissed the City of Calgary’s application for judicial review. The City appeals. For the reasons which follow the appeal is dismissed.

II. Background and Legislation 2 Pursuant to section 371(1) of the Municipal Government Act, RSA 2000, c M-26 a municipality is permitted to pass a business tax bylaw providing for the taxation of all businesses operating within the municipality. The bylaw must specify the method used to prepare the assessment. Here the City chose to assess based on a percentage of the net annual rental value (NARV) of the premises: section 374(1)(b)(i.1). The bylaw must also specify the basis on which a business tax may be imposed by prescribing for the NARV method, the percentage of the net annual rental value: section 374(1)(c)(i.1). A business tax is a form of occupancy tax. The business tax at issue is governed by two identical BTC Properties II Ltd. v. Calgary (City) Per curiam 227

City of Calgary Bylaws, 8M2005 and 9M2006. Section 4(1) of the By- laws provides: 4.(1) Every Person who operates a Business in Premises within the City shall be assessed by the Assessor for the purposes of imposing a Business Tax. (emphasis added) 3 Premises is defined in section 3(g): 3.(g) “Premises” means any space occupied or used for the purpose of or in connection with a Business, and without limiting the generality of the foregoing includes: (i) land and buildings or part of buildings on such land; and (ii) any store, office, warehouse, factory, facility, hotel, motel, enclosure, yard or other space. (emphasis added) 4 Prior to 2003, the City did not assess business tax on parking spaces associated with office buildings and rented to tenants. Parking operators such as Impark and Imperial Parking challenged their 2002 tax assessment. One basis for the challenge was the unfairness resulting from their being taxed while owners or landlords of office buildings with parking were not taxed. In Tonko Development Corp. v. Calgary (City) MGB 078/03 [2003 CarswellAlta 2329 (Alta. Mun. Gov. Bd.)] the Board found that a systemic inequity resulted from the fact that owners/landlords of parking facilities in office buildings were in competing businesses with the parking operators but were not being assessed by the City. In 2003, the City began taxing both parking operators and owner/landlords of office building parking facilities. 5 BTC’s appeals of the 2003-2006 assessments to the Calgary Assess- ment Review Board were dismissed. BTC further appealed to the Board. The 2004 assessments were affirmed on the basis that there was insufficient evidence to decide the matter: Altus Group Calgary v. Calgary (City) MGB 016/06 [2006 CarswellAlta 2319 (Alta. Mun. Gov. Bd.)]. The Board allowed the appeals for the 2005 and 2006 taxation years. The City sought judicial review. 6 It is conceded that BTC operates a business and indeed it pays business tax on the premises in a downtown Calgary office building out of which it runs its business as a landlord. However, it says that the parking spaces in the three buildings are not occupied or used for the purpose of or in connection with its business as landlord. 228 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

A. Board Order MGB 057/08 7 In a four day hearing the Board reviewed the Assessment Review Board Return, heard from two witnesses for BTC and one for the City, and examined six leases. The Board found that the subject parking facilities were included in the definition of “premises”. Indeed, the Board in Tonko had concluded that the definition of space included parking spaces. However, the Board concluded that BTC was not the proper assessed party as there was no parking business being operated on or in connection with the premises. The Board reasoned that a determination of whether business tax is assessed requires: (1) a business being operated, (2) premises and (3) premises used or occupied in the operation of or in connection with that business. It concluded that BTC’s business was leasing space including both the office portion and the parking facility, and that although parking was charged separately, it was part and parcel of the agreement for office space. Accordingly, parking was incidental to the lease and not a secondary business conducted by the landlord. 8 The Board reduced the business tax to nil. The City asked the Board to reconsider its decision. The Board refused the request and reaffirmed its original decision: MGB 006/09.

B. Judicial Review: 2010 ABQB 719, 37 Alta. L.R. (5th) 347 (Alta. Q.B.) 9 The City sought judicial review on the basis that the MGB’s decision was procedurally unfair because the Board’s reasons were inadequate. It also challenged the merits of the Board’s decision. 10 In determining the appropriate standards of review, the reviewing judge considered both the standards in relation to sufficiency of the Board’s reasons, and the Board’s decision on the substantive issue of whether liability for taxation should be assessed. As regards the sufficiency of reasons, the reviewing judge thoroughly canvassed the two lines of authorities on the standard of review for questions of procedural fairness. She conducted an analysis both under New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), and Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 (S.C.C.). With respect to the substantive issue, she concluded that this should be reviewed on a standard of reasonableness. BTC Properties II Ltd. v. Calgary (City) Per curiam 229

11 The reviewing judge concluded that the Board’s decision that the parking facilities were not occupied or used for the purpose of or in connection with BTC’s space leasing business was reasonable. She also considered the sufficiency of the reasons from a functional perspective and held that the reasons were adequate as they showed how the Board interpreted the legislation and Bylaws, how it determined the applicable facts and how it applied the law to those facts.

III. Grounds of Appeal 12 The City’s five grounds of appeal can be summarized as follows. Did the reviewing judge err in: 1. her selection of and application of the standard of review to the Board’s alleged failure to provide sufficient reasons; 2. her conclusion that the Board’s decision was reasonable; and 3. her failure to consider and apply the paramount occupancy principle. The City also says that the reviewing judge failed to provide sufficient reasons.

IV. Standard of Review of the Reviewing Judge’s Decision 13 This appeal engages a number of standards of review, the first of which is the standard that this court will apply in assessing the decision of the reviewing judge. The reviewing judge’s selection of the standard of review is a question of law and reviewed by this court on a standard of correctness. Her application of the standard of review to the Board’s decision is also subject to the standard of correctness: Macdonald v. Mineral Springs Hospital, 2008 ABCA 273 (Alta. C.A.) at para 19, (2008), 437 A.R. 7 (Alta. C.A.).

V. Sufficiency of the Board’s Reasons A. Standard of Review 14 At the time the reviewing judge issued her decision the law was un- settled as to whether an alleged insufficiency of a tribunal’s reasons should be reviewed on a standard of reasonableness or a standard of correctness. The rationale for review on a correctness standard is that the obligation to give reasons is an issue of procedural fairness: Clifford v. Ontario (Attorney General), 2009 ONCA 670, 98 O.R. (3d) 210 (Ont. C.A.), leave to appeal dismissed [2009] S.C.C.A. No. 461 (S.C.C.). 230 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

15 The Supreme Court of Canada recently determined that where there are reasons to review (as opposed to a situation where the tribunal gave no reasons) any challenge to the sufficiency of the reasons should be made within the reasonableness analysis: N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.). Abella J noted that it would be “an unhelpful elaboration on Baker to suggest that alleged defi- ciencies or flaws in the reasons fall under the category of a breach of the duty of procedural fairness and that they are subject to a correctness review”: para 21. 16 Here, the Board issued reasons, and the reviewing judge conducted her analysis using both approaches, including the application of the reasonableness standard. Accordingly, she made no error in her selection of the standard or review.

B. Sufficiency of the Board’s Reasons 17 This court in Moll v. College of Psychologists (Alberta), 2011 ABCA 110, 42 Alta. L.R. (5th) 286 (Alta. C.A.) addressed the question of sufficiency of reasons in the context of administrative tribunals at para 33: Assessing the sufficiency of reasons should be done having regard to the three purposes that reasons serve: (1) to tell the parties why a decision was made; (2) to provide public accountability for that decision; and (3) to permit effective appellate review: R.E.M., supra, para. 11. However, reasons are not to be read in a vacuum but rather in context: Walsh v. Council for Licensed Practical Nurses, 2010 NLCA 11, 295 Nfld. & P.E.I.R. 222 at para. 28. That context necessarily includes the totality of the evidence led during the proceedings, the issues raised and the arguments advanced in counsels’ submissions: R.E.M., supra, at para. 17; and Johnston v. Alberta (Energy and Utilities Board) (1997), 200 A.R. 321, 1 Admin. L.R. (3d) 241 (C.A.), at para. 10. 18 The reviewing judge conducted a functional analysis of the Board’s reasons as contemplated by the Supreme Court in R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3 (S.C.C.). She examined both the findings of fact made by the Board and the application of the law to those facts. She concluded that the Board’s reasons were sufficient. 19 The Board held that “from a careful examination of the leases for the subject office buildings and other evidence provided” BTC was not operating a parking business. “Rather, [BTC’s] business is that of leasing space, which encompasses space in both the office portion and the parking facility.” The Board stated that it had weighed a number of factors BTC Properties II Ltd. v. Calgary (City) Per curiam 231

which indicated that the parking was incidental to the office lease, and not being operated as a secondary business. These factors were: (1) there was no public access to the parking facilities, (2) in two of the leases parking was allocated based on the square footage of the office space lease, (3) two of the leases gave the tenant the first option of obtaining more parking if it became available, and (4) another lease committed the landlord to finding more parking space in surface lots operated by a third party. 20 The City contends that the reasons are insufficient because the Board only reviewed six leases and that its reasons do not refer to the specific clauses of the leases upon which it relied. Before the Board, the City did not take issue with the number of leases proffered in evidence by the respondent. It cannot now do so on appeal. The reviewing judge commented that the Board’s reference to the types of provisions in the leases (rather than reference to specific clauses) was adequate to support its conclusions. The City also complains about the Board’s failure to specify the “other evidence” upon which it relied. There were nine volumes in the Return. The reviewing judge observed that while it would have been convenient if the Board had identified the “other evidence” it considered, its failure to do so did not deprive the parties of an explanation, nor the public of accountability, nor the court the opportunity of effective judicial review. We agree with the reviewing judge’s conclusion. The Board’s reasons adequately set out the factors upon which it relied in coming to its conclusion. 21 The City had an expectation that as a result of the Board’s previous decisions, the Board would find that the respondent should be assessed for the parking space. It submits that the Board did not adequately explain why it came to a different result in this case. The Board referred to these decisions and distinguished them on the basis that the issue in one case, and the evidence in another, were different. The Board’s reasons adequately explain the distinction and meet the requirement for sufficiency of reasons. The reviewing judge did not err in her conclusion that the Board’s reasons were sufficient.

VI. Board’s Decision on the Merits A. Standard of Review 22 The reviewing judge applied the standard of review analysis man- dated by Dunsmuir. She concluded that both the existing case law and an application of the Dunsmuir factors resulted in a standard of review of 232 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

reasonableness. She made no error in her selection of the standard of review.

B. Reasonableness of the Board’s Decision 23 As the reviewing judge correctly noted, a tribunal’s decision will be reasonable if two conditions are satisfied. First, justification, trans- parency and intelligibility must exist in the decisionmaking process. Sec- ond, the decision must fall within a range of possible outcomes which are defensible given the law and the facts: Dunsmuir at para 47. 24 The Board considered the relevant provisions of the Bylaws. These included the general authority for assessment: “Every Person who operates a Business in Premises within the City shall be assessed ... for the purposes of imposing a business tax.” The respondent’s argument was that it operated a business as a landlord but not “in” the parking lot premises (emphasis added). In determining that the respondent ought not to have been assessed, the Board asked three questions: (1) was there a business being operated? (2) were the parking facilities “premises”? and (3) were the premises used or occupied in the operation of or in connection with that business? 25 The Board’s earlier decision in Tonko had concluded that parking spaces were included in the definition of premises. The Board stated that it agreed with that conclusion but that the real issue in this case was whether a parking business was operated on the premises. The Board concluded that BTC was not operating a parking business. “Rather, [BTC’s] business is that of leasing space, which encompasses space in both the office portion and the parking facility. The primary relationship between the tenants and [BTC] arises from the lease agreement for the office space.” The Board then set out its path of reasoning, and the factors upon which it relied in coming to its conclusion. These were (1) the lack of public access to the parking facilities, (2) allocation of parking based on the square footage of office space leased, (3) options in the leases to increase parking allotment if space became available, and (4) the provision in one lease requiring the landlord to find parking in lots operated by a third party. The Board stated that upon examining the access and maintenance provisions in the leases, it was the landlord who was responsible for the maintenance and upkeep while the tenant, the end user, generally controlled access to the parkade. The Board concluded that these factors indicated that the parking was incidental to the office lease. This determination was sufficient to dispose of the appeal. BTC Properties II Ltd. v. Calgary (City) Per curiam 233

26 However, the Board then considered whether the parking facilities were premises used or occupied in connection with the business. Here the Board suggested that the parking facilities might be used or occupied by the tenants’ businesses, but that this could not be decided without the tenants’ participation in the hearing. 27 The Board also considered its previous decisions, and distinguished them. In MGB 124/05 there had been an agreed fact that the assessed person was operating a parking business. In Altus, the Board found that there was insufficient evidence from the owners/landlords to decide the issue of the proper assessed person. There, the leases provided by the owners/landlords were found to be inadequate and the highlighted ex- cerpts from the leases showed control exercised by the owners. 28 The Board’s reasons are within a range of possible outcomes which are defensible both on the facts and the law. The reasons justify the Board’s conclusion. They are transparent and intelligible. The reviewing judge did not err when she found that the decision was reasonable.

C. Paramount Occupancy 29 The City submits that the Board erred in failing to apply the paramount occupancy principle. This principle, applied by the Ontario Court of Appeal in Gottardo Properties (Dome) Inc. v. Toronto (City) (1998), 111 O.A.C. 272, 162 D.L.R. (4th) 574 (Ont. C.A.), holds that when two persons occupy or use the same land at the same time, assessability depends on who has paramount occupancy or use of the land for its business. At issue in Gottardo was who should be assessed for occupancy of the SkyBoxes in the Toronto SkyDome; the owner of the boxes or the licensees. The underlying premise is that both operated a business in the boxes. The court was required to apply the paramount occupancy principle. 30 In this case, as the Board found that the respondent was not operating a business in the parking facilities, it was not necessary to consider the paramount occupancy principle. This was a reasonable conclusion.

VII. Insufficiency of the Reviewing Judge’s Reasons 31 The City also contends that the reviewing judge’s reasons were insufficient and in particular that there were significant inconsistencies or conflicts in the evidence that were not addressed in the reasons. Although length of reasons is not necessarily the hallmark of sufficient reasons, we note that the reviewing judge’s reasons comprise 170 paragraphs. They 234 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

are very thorough. She discussed each issue, grappled with the standard of review applicable to each issue, and in several places analyzed the issue from more than one standard of review. She conducted a detailed examination of the Board’s reasons and concluded that they met the requirements of Dunsmuir. There is no merit to this ground of appeal.

VIII. Conclusion 32 The reviewing judge correctly selected and applied the standards of review to each issue. The Board’s reasons are sufficient and its decision is reasonable. The appeal is dismissed. Appeal dismissed. U.F.C.W., Local 401 v. Alberta (I.P.C.) 235

[Indexed as: U.F.C.W., Local 401 v. Alberta (Information & Privacy Commissioner)] In the Matter of the Personal Information Protection Act, S.A. 2003, c. P-6.5 And In the Matter of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, C.11 And In the Matter of Order P2008-008 of the Office of the Information and Privacy Commissioner, issues on March 30, 2009 United Food and Commercial Workers, Local 401 (Applicant) and Information and Privacy Commissioner (Respondent) and Attorney General of Alberta (Respondent) Alberta Court of Queen’s Bench Docket: Edmonton 0903-05953 2011 ABQB 415 J.H. Goss J. Heard: February 15, 2011 Judgment: June 30, 2011 Constitutional law –––– Charter of Rights and Freedoms — Nature of remedies under Charter — General principles. Labour and employment law –––– Labour law — Industrial disputes — Picketing — Legality — Effect of Charter of Rights and Freedoms –––– Un- ionized employees picketed employer, casino located in shopping mall — Union videotaped and photographed picket lines — Union posted signs stating that images of persons crossing picket line could be placed on its website — Union made posters featuring “mug shot” of vice president of employer, and images of his head were used in union publications with captions intended to be humorous — Vice president and others made complaints under Personal Information Protection Act, alleging that union’s recording and use of their personal information was in violation of Act — Union alleged that its conduct fell within statutory exceptions to applicability of Act for personal information collected, used or disclosed for journalistic purposes, and for publicly available information — Privacy Commission adjudicator found statutory exceptions did not apply — Union applied for judicial review, alleging that exceptions infringed s. 2(b) of Canadian Charter of Rights and Freedoms — Application granted on other 236 ALBERTA LAW REPORTS 53 Alta. L.R. (5th) grounds — Recording of picket line by video and still camera photography had expressive content — Expressive conduct at issue was part of union’s picket- line activity — Union’s method of expression, photographs and videos printed on posters or posted on internet, was not incompatible with free expression or inconsistent with Charter protections. Privacy and freedom of information –––– Provincial privacy legislation — Constitutional issues –––– Unionized employees picketed employer, casino located in shopping mall — Union videotaped and photographed picket lines and vicinity — Union posted signs stating that images of persons crossing picket line could be placed on its website — Union made posters featuring “mug shot” of vice president of employer, and his image was used in union publications with captions intended to be humorous — Vice president and others made complaints under Personal Information Protection Act alleging that union’s recording and use of their personal information was in violation of Act — Union alleged that its conduct fell within statutory exceptions to applicability of Act for personal information collected, used or disclosed for journalistic purposes, and for publicly available information — Privacy Commission adjudicator found statutory exceptions did not apply — Union applied for judicial review, alleging that exceptions infringed s. 2(b) of Canadian Charter of Rights and Freedoms — Appli- cation granted — Provisions in Act that prohibited organization from collecting, using and disclosing personal information collected at public, political demonstration, like picket line, infringed s. 2(b) and were not justified under s. 1 — Section 7 of Regulation to Act was of no force and effect to extent that it prohibits union from photographing or video-recording picket line site in course of lawful strike, including persons at that site or surroundings, and/or publishing or internet-posting such recordings in publications or websites of union — There was no rational connection between protecting personal information and excluding public, political demonstrations, like picket lines, from definition of “publicly available” — Exception in s. 4(3)(c) of Act that applied only to organization that has journalistic purpose and no other purpose infringed s. 2(b) of Charter and was not justified under s. 1 of Charter — There was rational connection between protecting privacy interests and prohibiting organization from collecting or using personal information because organization has purposes beyond journalistic purpose, but measure was not minimally impairing. Privacy and freedom of information –––– Provincial privacy legislation — Collection of personal information — Statutory exceptions –––– Unionized employees picketed employer, casino located in shopping mall — Union videotaped and photographed picket lines — Union posted signs stating that images of persons crossing picket line could be placed on its website — Union made posters featuring “mug shot” of vice president of employer, and his image was used in union publications with captions intended to be humorous — Vice president and others made complaints under Personal Information Protection Act al- U.F.C.W., Local 401 v. Alberta (I.P.C.) 237 leging that union’s recording and use of their personal information was in violation of Act — Union alleged that its conduct fell within statutory exceptions to applicability of Act for personal information collected, used or disclosed for journalistic purposes, and for publicly available information — Privacy Com- mission adjudicator found statutory exceptions did not apply — Union applied for judicial review, alleging that exceptions infringed s. 2(b) of Canadian Char- ter of Rights and Freedoms — Application granted — Exception in s. 4(3)(c) of Act that applied only to organization that has journalistic purpose and no other purpose infringed s. 2(b) of Charter and was not justified under s. 1 of Char- ter — Phrase “and for no other purpose” in s. 4(3)(c) was of no force or effect — Purpose and effect of narrow definition of “publicly available” infringed union’s rights under s. 2(b) — Provisions in Act that prohibited organization from collecting, using and disclosing personal information collected at public, political demonstration, like picket line, infringed s. 2(b) and were not justified under s. 1 — Section 7 of Regulation to Act was of no force and effect to extent that it prohibits union from photographing or video-recording picket line site in course of lawful strike, including persons at that site or surroundings, and/or publishing or internet-posting such recordings in publications or websites of union. The employer was a casino located inside a shopping mall. The union represented some of the casino’s employees. During a lawful strike, the union picketed the casino. Both the union and the employer videotaped and photographed the picket lines and its surroundings. The union posted signs in the area of the picketing stating that images of persons crossing the picket line could be placed on its website, “www.CasinoScabs.ca”. The union also made posters featuring a “mug shot” of the vice president of the casino and used his image in union publications, accompanied by captions intended to be humorous. A number of individuals, including the vice president, made complaints under the Personal Information Protection Act regarding the union’s collection and use of the personal information recorded at the picket lines. The union alleged that its conduct fell within two statutory exceptions to the applicability of the Act: personal information collected, used or disclosed for “journalistic purposes” and “for no other purpose” under s. 4(3)(c) of the Act; and information that was “publicly available” under ss. 14(e), 17(e) and 20(j) as defined in s. 7 of the Regulations to the Act. The adjudicator accepted that there were a number of purposes for recording picketing, and indicated that these purposes also included an underlying purpose: achieving a resolution to the labour dispute favourable to the union. The adjudicator concluded that the union could not have had a journalistic purpose, and no other purpose, because it had a stake in the outcome of the strike about which it was reporting. 238 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

The adjudicator found that certain personal information that was collected, used and disclosed for the purpose of a possible investigation or legal proceeding was authorized by the Act; that this was a reasonable purpose, and that any collection restricted to this purpose was reasonable. However, the union failed to provide notice that this was its purpose and therefore breached s. 13 of the Act. The union applied for judicial review of the adjudicator’s decision, alleging that the statutory exceptions in the Act breached the freedom of expression rights guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. Held: The application was granted. The exceptions infringed s. 2(b) of the Charter and were not justified under s. 1 of the Charter. The adjudicator’s decision was quashed to the extent that it relied on the impugned provisions of the Act. The activity of recording the picket line by video and still camera photography had expressive content. The expressive conduct at issue here was part of the union’s picket-line activity. The union’s method of expression, photographs and videos printed on posters or posted on the internet, was not incompatible with free expression or inconsistent with Charter protections. Section 7 of the Regulation defines when “information is publicly available” very narrowly, and none of the circumstances at issue fell within this exception. Both the purpose and effect of the narrow definition of “publicly available” infringed the union’s rights under s. 2(b). The adjudicator erred when she concluded that the union could not have had a journalistic purpose, and no other purpose, because it had a stake in the outcome of the strike about which it was reporting. The effect of s. 4(3)(c) is to limit journalistic expression if the organization has any purpose other than a journalistic one. This was the plain and ordinary meaning of the provision, and there was no other possible interpretation. The purpose of these exceptions was to limit expression of personal information by organizations where that expression includes personal information, even if one of its purposes, but not the only purpose, was journalistic. The restrictions on the union’s freedom of expression were not justified under s. 1 of the Charter. There was no rational connection between protecting personal information and excluding public, political demonstrations, like picket lines, from the definition of “publicly available”. The complainants had no reasonable expectation of privacy. They were at a public demonstration with important political and social implications. The Act does not prevent individuals or media from taping or photographing the people at a picket-line. There was a rational connection between protecting privacy interests and prohibiting an organization from collecting information because the organization has additional purposes beyond a journalistic one. However, the impairment was not minimal. The requirement that an organization’s only purpose be journalistic U.F.C.W., Local 401 v. Alberta (I.P.C.) 239 was an extreme limitation on freedom of the press. Even if the impairment was minimal, it was not proportionate. The salutary effects of protecting personal information is minimal where the individual has chosen to be at a public, political event, and where individuals and the media could take the photographs and video without similar restriction. The phrase “and for no other purpose” in s. 4(3)(c) violated s. 2(b) of the Char- ter, and the violation was not justified under s. 1. That portion of s. 4(3)(c) was declared of no force or effect. It was declared that s. 7 of the Regulation violated s. 2(b) of the Charter, and the violation was not justified under s. 1, to the extent that it prohibits a union from photographing or video-recording a picket line site in the course of a lawful strike, including persons at that site or surroundings, and/or publishing or internet-posting such recordings in publications or websites of that union. The declaration of invalidity was suspended for 12 months. To protect union rights during the suspension, a constitutional exemption was to be applied in the above circumstances. Cases considered by J.H. Goss J.: A.T.A. v. Alberta (Information & Privacy Commissioner) (2008), 1 Admin. L.R. (5th) 85, 2008 CarswellAlta 2300, 21 Alta. L.R. (5th) 24 (Alta. Q.B.) — referred to A.T.A. v. Alberta (Information & Privacy Commissioner) (2010), [2010] 8 W.W.R. 457, 1 Admin. L.R. (5th) 60, 474 A.R. 169, 479 W.A.C. 169, 316 D.L.R. (4th) 117, 2010 CarswellAlta 94, 2010 ABCA 26, 21 Alta. L.R. (5th) 30 (Alta. C.A.) — referred to A.T.A. v. Alberta (Information & Privacy Commissioner) (2010), 2010 Carswell- Alta 611, [2010] C.S.C.R. No. 100, [2010] S.C.C.A. No. 100 (S.C.C.) — referred to A.T.U., Local 569 v. Edmonton (City) (2004), 2004 CarswellAlta 435, (sub nom. Amalgamated Transit Union, Local 569 v. City of Edmonton) 2004 C.L.L.C. 220-048, 238 D.L.R. (4th) 81, 124 L.A.C. (4th) 225, 117 C.R.R. (2d) 211, 35 Alta. L.R. (4th) 175, (sub nom. Amalgamated Transit Union Local No. 569 v. Edmonton (City)) 356 A.R. 228, 2004 ABQB 280, [2005] 6 W.W.R. 330, [2004] A.J. No. 419 (Alta. Q.B.) — referred to Alberta Teachers’ Assn., Re (March 13, 2008), Doc. P0300, [2008] A.I.P.C.D. No. 28 (Alta. I.P.C.) — considered Aubry c. Editions´ Vice Versa Inc. (1998), (sub nom. Aubry v. Editions´ Vice- Versa inc.) 157 D.L.R. (4th) 577, (sub nom. Aubry v. Editions´ Vice-Versa inc.) 78 C.P.R. (3d) 289, (sub nom. Aubry v. Editions´ Vice-Versa inc.) 224 N.R. 321, 1998 CarswellQue 4806, 1998 CarswellQue 4807, (sub nom. Aubry v. Editions´ Vice-Versa Inc.) 50 C.R.R. (2d) 225, (sub nom. Aubry v. Editions´ Vice-Versa inc.) [1998] 1 S.C.R. 591, 5 B.H.R.C. 437, 45 C.C.L.T. (2d) 119, [1998] S.C.J. No. 30 (S.C.C.) — distinguished 240 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

Baier v. Alberta (2007), 2007 SCC 31, 2007 CarswellAlta 853, 2007 Carswell- Alta 854, [2007] 9 W.W.R. 389, 76 Alta. L.R. (4th) 1, 283 D.L.R. (4th) 1, 365 N.R. 1, [2007] 2 S.C.R. 673, 412 A.R. 300, 156 C.R.R. (2d) 279, 404 W.A.C. 300, [2006] S.C.C.A. No. 254, [2007] S.C.J. No. 31 (S.C.C.) — referred to Canada (Attorney General) v. Mossop (1993), 93 C.L.L.C. 17,006, 13 Admin. L.R. (2d) 1, 1993 CarswellNat 1365, 1993 CarswellNat 1377, 46 C.C.E.L. 1, 149 N.R. 1, [1993] 1 S.C.R. 554, 100 D.L.R. (4th) 658, 17 C.H.R.R. D/349, [1993] S.C.J. No. 20, EYB 1993-68604 (S.C.C.) — referred to Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc. (1984), (sub nom. Hunter v. Southam Inc.) 11 D.L.R. (4th) 641, 33 Alta. L.R. (2d) 193, (sub nom. Hunter v. Southam Inc.) 55 A.R. 291, 27 B.L.R. 297, 41 C.R. (3d) 97, 84 D.T.C. 6467, (sub nom. Hunter v. Southam Inc.) 14 C.C.C. (3d) 97, (sub nom. Director of Investigations & Research Combines Investigation Branch v. Southam Inc.) [1984] 6 W.W.R. 577, 1984 CarswellAlta 121, 1984 CarswellAlta 415, (sub nom. Hunter v. Southam Inc.) [1984] 2 S.C.R. 145, (sub nom. Hunter v. Southam Inc.) 55 N.R. 241, (sub nom. Hunter v. Southam Inc.) 2 C.P.R. (3d) 1, (sub nom. Hunter v. Southam Inc.) 9 C.R.R. 355, 48 N.R. 320, [1984] S.C.J. No. 36 (S.C.C.) — considered Canada Safeway Ltd. v. Shineton (2007), 2007 CarswellAlta 1808, 2007 ABQB 773, 87 Alta. L.R. (4th) 161, 444 A.R. 131, 71 Admin. L.R. (4th) 82, [2008] 6 W.W.R. 702, [2007] A.J. No. 1477 (Alta. Q.B.) — distinguished Dagenais v. Canadian Broadcasting Corp. (1994), 1994 CarswellOnt 1168, 1994 SCC 102, 34 C.R. (4th) 269, 20 O.R. (3d) 816 (note), [1994] 3 S.C.R. 835, 120 D.L.R. (4th) 12, 175 N.R. 1, 94 C.C.C. (3d) 289, 76 O.A.C. 81, 25 C.R.R. (2d) 1, 1994 CarswellOnt 112, EYB 1994-67668, [1994] S.C.J. No. 104 (S.C.C.) — referred to Delisle c. Canada (Sous-procureur g´en´eral) (1999), [1999] 2 S.C.R. 989, (sub nom. Delisle v. Canada (Attorney General)) 244 N.R. 33, (sub nom. Delisle v. Canada (Deputy Attorney General)) 176 D.L.R. (4th) 513, (sub nom. Delisle v. Canada (Attorney General)) 66 C.R.R. (2d) 14, (sub nom. Delisle v. Attorney General of Canada) 99 C.L.L.C. 220-066, 1999 CarswellQue 2840, 1999 CarswellQue 2841, [1999] S.C.J. No. 43 (S.C.C.) — considered Druken v. R.G. Fewer & Associates Inc. (1998), 1998 CarswellNfld 289, 171 Nfld. & P.E.I.R. 312, 525 A.P.R. 312, 58 C.R.R. (2d) 106, [1998] N.J. No. 312 (Nfld. T.D.) — referred to Edmonton Journal v. Alberta (Attorney General) (1989), 1989 SCC 133, [1990] 1 W.W.R. 577, [1989] 2 S.C.R. 1326, 64 D.L.R. (4th) 577, 102 N.R. 321, 71 Alta. L.R. (2d) 273, 103 A.R. 321, 41 C.P.C. (2d) 109, 45 C.R.R. 1, 1989 CarswellAlta 198, 1989 CarswellAlta 623, [1989] S.C.J. No. 124, EYB 1989-66926 (S.C.C.) — referred to U.F.C.W., Local 401 v. Alberta (I.P.C.) 241

Globe & Mail c. Canada (Procureur général) (2010), (sub nom. Globe & Mail v. Canada (Attorney General)) 220 C.R.R. (2d) 339, [2010] 2 S.C.R. 592, 2010 SCC 41, 2010 CarswellQue 10258, 2010 CarswellQue 10259, (sub nom. CTVglobemedia Publishing Inc. v. Canada (Attorney General)) 407 N.R. 202, (sub nom. Globe & Mail v. Canada (Procureur général)) 325 D.L.R. (4th) 193, 78 C.R. (6th) 205, 94 C.P.C. (6th) 1, [2010] A.C.S. No. 41, [2010] S.C.J. No. 41 (S.C.C.) — referred to Grant v. Torstar Corp. (2009), 204 C.R.R. (2d) 1, [2009] 3 S.C.R. 640, 397 N.R. 1, 258 O.A.C. 285, 72 C.C.L.T. (3d) 1, 314 D.L.R. (4th) 1, 2009 Cars- wellOnt 7956, 2009 CarswellOnt 7957, 2009 SCC 61, 79 C.P.R. (4th) 407, EYB 2009-167615, [2009] S.J. No. 61 (S.C.C.) — referred to Haig v. R. (1993), 1993 CarswellNat 1384, (sub nom. Haig v. Canada) [1993] 2 S.C.R. 995, 1993 CarswellNat 2353, (sub nom. Haig v. Canada) 16 C.R.R. (2d) 193, (sub nom. Haig v. Canada) 156 N.R. 81, (sub nom. Haig v. Can- ada) 105 D.L.R. (4th) 577, (sub nom. Haig v. Canada) 66 F.T.R. 80 (note), EYB 1993-67294, [1993] S.C.J. No. 84 (S.C.C.) — referred to Hutterian Brethren of Wilson Colony v. Alberta (2006), 33 M.V.R. (5th) 16, 57 Alta. L.R. (4th) 300, 141 C.R.R. (2d) 227, 2006 ABQB 338, 2006 Carswell- Alta 576, [2006] 8 W.W.R. 190, 269 D.L.R. (4th) 757, 398 A.R. 5 (Alta. Q.B.) — considered Hutterian Brethren of Wilson Colony v. Alberta (2007), [2007] 9 W.W.R. 459, 49 M.V.R. (5th) 45, 283 D.L.R. (4th) 136, 77 Alta. L.R. (4th) 281, 417 A.R. 68, 410 W.A.C. 68, 2007 CarswellAlta 622, 2007 ABCA 160, (sub nom. R. v. Hutterian Brethren of Wilson Colony) 156 C.R.R. (2d) 234, [2007] A.J. No. 518 (Alta. C.A.) — referred to Irwin Toy Ltd. c. Québec (Procureur général) (1989), 94 N.R. 167, (sub nom. Irwin Toy Ltd. v. Quebec (Attorney General)) [1989] 1 S.C.R. 927, 58 D.L.R. (4th) 577, 24 Q.A.C. 2, 25 C.P.R. (3d) 417, 39 C.R.R. 193, 1989 CarswellQue 115F, 1989 CarswellQue 115, EYB 1989-67798, [1989] S.C.J. No. 36 (S.C.C.) — followed K Mart Canada Ltd. v. U.F.C.W., Local 1518 (1999), (sub nom. U.F.C.W., Local 1518 v. KMart Canada Ltd.) 66 C.R.R. (2d) 205, (sub nom. United Food & Commercial Workers, Local 1518 v. KMart Canada Ltd.) 128 B.C.A.C. 1, (sub nom. United Food & Commercial Workers, Local 1518 v. KMart Canada Ltd.) 208 W.A.C. 1, (sub nom. U.F.C.W., Local 1518 v. KMart Canada Ltd.) [1999] 2 S.C.R. 1083, 7 B.H.R.C. 384, (sub nom. United Food & Commercial Workers, Local 1518 v. KMart Canada Ltd.) 245 N.R. 1, (sub nom. U.F.C.W., Local 1518 v. KMart Canada Ltd.) 176 D.L.R. (4th) 607, (sub nom. United Food & Commercial Workers, Local 1518 v. KMart Canada Ltd.) 99 C.L.L.C. 220-064, 66 B.C.L.R. (3d) 211, [1999] 9 W.W.R. 161, 1999 CarswellBC 1909, 1999 CarswellBC 1910, [1999] S.C.J. No. 44 (S.C.C.) — considered 242 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

Leon’s Furniture Ltd. v. Alberta (Information & Privacy Commissioner) (2011), 45 Alta. L.R. (5th) 1, 22 Admin. L.R. (5th) 11, [2011] 9 W.W.R. 668, 502 A.R. 110, 517 W.A.C. 110, 2011 ABCA 94, 2011 CarswellAlta 453 (Alta. C.A.) — considered Milsom v. Corporate Computers Inc. (2003), 2003 ABQB 296, 2003 Carswell- Alta 599, [2003] 9 W.W.R. 250, 27 C.C.E.L. (3d) 26, 2003 C.L.L.C. 210- 052, 17 Alta. L.R. (4th) 124, [2003] A.J. No. 516 (Alta. Q.B.) — referred to Montreal (Ville) v. 2952-1366 Québec inc. (2005), (sub nom. Montréal (City) v. 2952-1366 Québec Inc.) 134 C.R.R. (2d) 196, [2005] 3 S.C.R. 141, 201 C.C.C. (3d) 161, 32 Admin. L.R. (4th) 159, 15 M.P.L.R. (4th) 1, 2005 Car- swellQue 9633, 2005 CarswellQue 9634, 2005 SCC 62, 258 D.L.R. (4th) 595, (sub nom. Montreal (City) v. 2952-1366 Québec Inc.) 340 N.R. 305, 18 C.E.L.R. (3d) 1, 33 C.R. (6th) 78, [2005] S.C.J. No. 63 (S.C.C.) — followed New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to Peavine Métis Settlement v. Alberta (Minister of Aboriginal Affairs & Northern Development) (2009), (sub nom. Cunningham v. Alberta (Minister of Aboriginal Affairs and Northern Development)) 194 C.R.R. (2d) 205, 2009 ABCA 239, 2009 CarswellAlta 952, 8 Alta. L.R. (5th) 16, [2009] 9 W.W.R. 584, [2009] 3 C.N.L.R. 261, 310 D.L.R. (4th) 519, 457 W.A.C. 297, 457 A.R. 297 (Alta. C.A.) — considered Pepsi-Cola Canada Beverages (West) Ltd. v. R.W.D.S.U., Local 558 (2002), (sub nom. R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd.) 2002 SCC 8, 2002 CarswellSask 22, 2002 CarswellSask 23, 217 Sask. R. 22, 265 W.A.C. 22, (sub nom. R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd.) [2002] 1 S.C.R. 156, 2002 C.L.L.C. 220- 008, 280 N.R. 333, [2002] 4 W.W.R. 205, 208 D.L.R. (4th) 385, (sub nom. R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd.) 90 C.R.R. (2d) 189, 78 C.L.R.B.R. (2d) 161, [2002] S.C.J. No. 7, REJB 2002- 27591 (S.C.C.) — considered Poliquin v. Devon Canada Corp. (2009), 2009 CarswellAlta 903, 2009 ABCA 216, 2009 C.L.L.C. 210-030, 454 A.R. 61, 8 Alta. L.R. (5th) 45, [2009] 9 W.W.R. 416, 75 C.C.E.L. (3d) 1, [2009] A.J. No. 626 (Alta. C.A.) — referred to Québec (Commission des droits de la personne & des droits de la jeunesse) c. Montréal (Ville) (2000), [2000] 1 S.C.R. 665, (sub nom. Quebec U.F.C.W., Local 401 v. Alberta (I.P.C.) 243

(Commission des droits de la personne & des droits de la jeunesse) v. Montréal (City)) 74 C.R.R. (2d) 80, 37 C.H.R.R. D/271, 2000 SCC 27, 2000 CarswellQue 649, 2000 CarswellQue 650, (sub nom. Ville de Montréal v. Mercier) 2000 C.L.L.C. 230-020, (sub nom. Québec (Commission des droits de la personne & des droits de la jeunesse) v. Montreal (City)) 185 D.L.R. (4th) 385, 50 C.C.E.L. (2d) 247, [2000] L.V.I. 3115-1, (sub nom. Québec (Commission des droits de la personne & des droits de la jeunesse) v. Montréal (Ville)) 253 N.R. 107, [2000] S.C.J. No. 24 (S.C.C.) — considered R. v. Butler (1992), [1992] 2 W.W.R. 577, [1992] 1 S.C.R. 452, 11 C.R. (4th) 137, 70 C.C.C. (3d) 129, 134 N.R. 81, 8 C.R.R. (2d) 1, 89 D.L.R. (4th) 449, 78 Man. R. (2d) 1, 16 W.A.C. 1, 1992 CarswellMan 100, 1992 CarswellMan 220, EYB 1992-67139 (S.C.C.) — considered R. v. Keegstra (1990), 1 C.R. (4th) 129, [1990] 3 S.C.R. 697, 77 Alta. L.R. (2d) 193, 117 N.R. 1, [1991] 2 W.W.R. 1, 114 A.R. 81, 61 C.C.C. (3d) 1, 3 C.R.R. (2d) 193, 1990 CarswellAlta 192, 1990 CarswellAlta 661, EYB 1990-66942, [1990] S.C.J. No. 131 (S.C.C.) — considered R. v. National Post (2010), 401 N.R. 104, 2010 CarswellOnt 2776, 2010 Cars- wellOnt 2777, 2010 SCC 16, [2010] 1 S.C.R. 477, (sub nom. National Post v. Canada) 254 C.C.C. (3d) 469, (sub nom. National Post v. Canada) 318 D.L.R. (4th) 1, 262 O.A.C. 1, 211 C.R.R. (2d) 1, 74 C.R. (6th) 1, 103 O.R. (3d) 398 (note) (S.C.C.) — considered R. v. Oakes (1986), [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, 65 N.R. 87, 14 O.A.C. 335, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 19 C.R.R. 308, 53 O.R. (2d) 719, 1986 CarswellOnt 95, 1986 CarswellOnt 1001, [1986] S.C.J. No. 7, EYB 1986-67556 (S.C.C.) — followed R. v. Patrick (2009), 190 C.R.R. (2d) 1, 2009 CarswellAlta 481, 2009 Carswell- Alta 482, 2009 SCC 17, 242 C.C.C. (3d) 158, 304 D.L.R. (4th) 260, 4 Alta. L.R. (5th) 1, 387 N.R. 44, 454 A.R. 1, [2009] 1 S.C.R. 579, [2009] 5 W.W.R. 387, 64 C.R. (6th) 1, [2009] S.C.J. No. 17 (S.C.C.) — considered R. v. Zundel (1992), 95 D.L.R. (4th) 202, 16 C.R. (4th) 1, 75 C.C.C. (3d) 449, 10 C.R.R. (2d) 193, (sub nom. R. v. Zundel (No. 2)) 56 O.A.C. 161, [1992] 2 S.C.R. 731, (sub nom. R. v. Zundel (No. 2)) 140 N.R. 1, 1992 CarswellOnt 109, 1992 CarswellOnt 995, EYB 1992-67540, [1992] S.C.J. No. 70 (S.C.C.) — referred to RJR-Macdonald Inc. c. Canada (Procureur général) (1995), (sub nom. RJR- MacDonald Inc. v. Canada (Attorney General)) 127 D.L.R. (4th) 1, (sub nom. RJR-MacDonald Inc. v. Canada (Attorney General)) [1995] 3 S.C.R. 199, 1995 CarswellQue 119, (sub nom. RJR-MacDonald Inc. v. Canada (Attorney General)) 100 C.C.C. (3d) 449, (sub nom. RJR-MacDonald Inc. v. Canada (Attorney General)) 62 C.P.R. (3d) 417, (sub nom. RJR-MacDonald Inc. v. Canada (Attorney General)) 31 C.R.R. (2d) 189, (sub nom. RJR- MacDonald Inc. c. Canada (Procureur général)) 187 N.R. 1, 1995 Car- 244 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

swellQue 119F, EYB 1995-67815, [1995] S.C.J. No. 68 (S.C.C.) — considered Rocket v. Royal College of Dental Surgeons (Ontario) (1990), 73 O.R. (2d) 128 (note), 1990 CarswellOnt 1014, 1990 CarswellOnt 1014F, (sub nom. Royal College of Dental Surgeons (Ontario) v. Rocket) 111 N.R. 161, [1990] 2 S.C.R. 232, 71 D.L.R. (4th) 68, 47 C.R.R. 193, (sub nom. Royal College of Dental Surgeons (Ontario) v. Rocket) 40 O.A.C. 241, EYB 1990-67601 (S.C.C.) — considered Schachter v. Canada (1992), [1992] 2 S.C.R. 679, 92 C.L.L.C. 14,036, 10 C.R.R. (2d) 1, 139 N.R. 1, 93 D.L.R. (4th) 1, 1992 CarswellNat 658, 1992 CarswellNat 1006, 53 F.T.R. 240 (note), [1992] S.C.J. No. 68, EYB 1992- 67220 (S.C.C.) — considered Silber v. British Columbia Television Broadcasting System Ltd. (1985), 1985 CarswellBC 383, 69 B.C.L.R. 34, 25 D.L.R. (4th) 345, [1986] 2 W.W.R. 609, [1985] B.C.J. No. 3009, [1985] B.C.J. No. 3012 (B.C. S.C.) — referred to Slaight Communications Inc. v. Davidson (1989), 26 C.C.E.L. 85, 1989 Car- swellNat 193, [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416, (sub nom. Davidson v. Slaight Communications Inc.) 93 N.R. 183, 89 C.L.L.C. 14,031, 40 C.R.R. 100, 1989 CarswellNat 695, [1989] S.C.J. No. 1038, EYB 1989- 67228 (S.C.C.) — referred to Société Radio-Canada c. Québec (Procureur général) (2011), 2011 SCC 2, 2011 CarswellQue 43, 2011 CarswellQue 44, (sub nom. Société Radio- Canada v. Québec (Procureur Général)) 328 D.L.R. (4th) 34, (sub nom. Société Radio-Canada v. Québec (Procureur Général)) 264 C.C.C. (3d) 1, (sub nom. CBC v. Canada (A.G.)) [2011] 1 S.C.R. 19, (sub nom. Canadian Broadcasting Corp. v. Canada (Attorney General)) 411 N.R. 23, 1 C.P.C. (7th) 1, [2011] S.C.J. No. 2 (S.C.C.) — considered U.F.C.W., Local 401, Re (March 30, 2009), Doc. P0564, [2009] A.I.P.C.D. No. 10 (Alta. I.P.C.) — referred to Vriend v. Alberta (1998), 50 C.R.R. (2d) 1, 224 N.R. 1, 212 A.R. 237, 168 W.A.C. 237, 31 C.H.R.R. D/1, [1999] 5 W.W.R. 451, 67 Alta. L.R. (3d) 1, [1998] 1 S.C.R. 493, 98 C.L.L.C. 230-021, 4 B.H.R.C. 140, 1998 Carswell- Alta 210, 1998 CarswellAlta 211, 156 D.L.R. (4th) 385, [1998] S.C.J. No. 29 (S.C.C.) — distinguished Statutes considered: Alberta Bill of Rights, R.S.A. 2000, c. A-14 Generally — referred to Administrative Procedures and Jurisdiction Act, R.S.A. 2000, c. A-3 Generally — referred to Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to U.F.C.W., Local 401 v. Alberta (I.P.C.) 245

s. 1 — considered s. 2(b) — considered s. 2(d) — considered s. 7 — considered s. 8 — considered Charte des droits et libertés de la personne, L.R.Q., c. C-12 en général — referred to art. 3 — considered art. 5 — considered Judicature Act, R.S.A. 2000, c. J-2 s. 24 — considered Labour Relations Code, R.S.A. 2000, c. L-1 Generally — referred to s. 84 — referred to s. 84(1) — considered Personal Information Protection Act, S.A. 2003, c. P-6.5 Generally — referred to s. 1(1)(i) “organization” — referred to s. 1(1)(k) “personal information” — considered s. 2 — referred to s. 2(b) — referred to s. 3 — considered s. 4(1) — referred to s. 4(3)(b) — referred to s. 4(3)(c) — considered s. 4(3)(d) — referred to s. 7(1) — considered s. 8 — considered s. 11 — considered s. 11(1) — referred to s. 11(2) — referred to s. 13 — referred to s. 13(1) — considered s. 14 — considered s. 14(d) — considered s. 14(e) — considered s. 16 — considered s. 16(1) — referred to s. 16(2) — referred to s. 17 — considered s. 17(d) — considered s. 17(e) — considered s. 19 — considered 246 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

s. 19(1) — referred to s. 19(2) — referred to s. 20 — considered s. 20(f) — considered s. 20(j) — considered s. 20(m) — considered s. 34 — considered s. 59 — referred to Personal Information Protection Act, S.B.C. 2003, c. 63 s. 3(2)(b) — referred to s. 12(1)(d) — considered s. 15(1)(d) — considered s. 18(1)(d) — considered Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 Generally — referred to s. 4 — referred to s. 7 — referred to s. 7(1)(d) — referred to s. 7(2)(c.1) — referred to s. 7(3)(h.1) — referred to Protection des renseignements personnels dans le secteur privé, Loi sur la, L.R.Q., c. P-39.1 en général — referred to art. 1 al. 4 — referred to Teaching Profession Act, R.S.A. 2000, c. T-2 Generally — referred to Regulations considered: Personal Information Protection Act, S.A. 2003, c. P-6.5 Personal Information Protection Act Regulation, Alta. Reg. 366/2003 Generally — referred to s. 7 — referred to Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 Publicly Available Information, Regulations Specifying, SOR/2001-7 s. 1 — considered Words and phrases considered journalistic purpose [J]ournalistic purpose can include persuasion, editorial comment, humour and education.

APPLICATION by union for judicial review of decision of Privacy Commission adjudicator. U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 247

Gwen J. Gray, Vanessa Cosco for Applicant Rod Wiltshire, David Kamal for Respondent

J.H. Goss J.: I. Introduction 1 The United Food and Commercial Workers, Local 401 (UFCW) seeks judicial review of a decision by an Adjudicator for the office of the Privacy Commissioner under the Personal Information Protection Act, S.A. 2003, c. P-6.5 (PIPA). UFCW alleges that the provisions of PIPPA that prohibit the Union from recording (either by photo or video) its lawful picket-line is an infringement of its s. 2(b) rights under the Charter1 . The Attorney General of Alberta is the only participating Respondent in the judicial review.2 2 UFCW filed two expert affidavits in support of their application. One affidavit is sworn by Professor Jeffery M. Taylor, Dean of the Faculty of Humanities and Social Sciences and a professor of Labour Studies at Athabasca University, and deals with the history and purposes of picket- lines. The second is sworn by Professor Robert A. Hackett, a professor of Communications at Simon Fraser University, and deals with the nature of journalism, the traditional media, and the role of individuals and non- government organizations in public communication.

II. Facts 3 UFCW represents some of the employees at the Palace Casino (the Employer) in West Edmonton Mall. In 2006, collective bargaining between the Union and the Casino broke down and the Union commenced a lawful strike. Union members and supporters picketed at the Casino as permitted under s. 84 of the Labour Relations Code, R.S.A. 2000, c. L-1 (LRC). The Labour Relations Board (LRB) issued three directives, including a picketing protocol that was agreed to by the Union and the employer. The protocol provided for five approved locations for the

1Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11. 2The Attorney General was served with a Notice of Constitutional Question in accordance with s. 24 of the Judicature Act, R.S.A. 2000, c. J-2 and appeared as the only Respondent. Neither the Privacy Commissioner or the original complainants to the Office of the Privacy Commissioner appeared or made submissions. 248 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

picketline at five specified entrances to the Casino, including the immediate vicinity of the main entrance to Palace Casino inside West Edmonton Mall.3 4 In the course of the strike, both UFCW and the employer4 videotaped and photographed the picket-line and its immediate surroundings. This included persons who crossed the picketline and who walked into and out of the Casino. West Edmonton Mall also routinely video records mall patrons. The Union posted signs in the area of the picketing stating that images of persons crossing the picket line could be placed on its web-site — “www.CasinoScabs.ca”. 5 The Complainants to the Commissioner included the Vice President of the Employer, who was photographed or video-taped. Two pictures of him were used on a poster displayed at the picket-line, with the text: “This is [x’s] Police Mugshot” and images of his head were used in union newsletters and strike leaflets with captions intended to be humorous. Another complainant testified that he crossed the picket-line several times to enter the Casino and the Union camera was trained on the entrance. He did not actually ever see a recording of himself entering the Casino, although he had checked the website to see if his image had been posted. A third complainant testified that she was photographed by a still camera at a small concession store next door to the Casino and that she was often recorded by the video camera as she greeted customers at the Casino door. 6 The evidence before the Adjudicator was that it was a long-standing, historical practice for both employers and unions to video-tape and take pictures of picket-lines. Among the purposes for doing so, as submitted by the Union and accepted by the Adjudicator, were: • informing the public and picketing Union members; • dissuading people from crossing the picket line; • acting as a deterrent to violence; • gathering evidence should it become relevant to an investigation or legal proceeding (both of altercations as well as to show long periods of peaceful picketing);

3Other entrances where picketing was lawful included the exterior Poker Room entrance, the employee entrance, the freight entrance, and Entrance Number Nine at West Edmonton Mall and its immediate vicinity. 4The Casino hired a private security company to video-record the picket-line. U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 249

• creating material for use as a training tool for Union members; • providing material to other unions for educational purposes; • supporting morale on the picket line with the use of humour; • responding to similar activity on the part of the employer, and • deterring theft of Union property. 7 The Adjudicator indicated that these purposes also included an underlying purpose (at para. 20): At a more basic level, many of these purposes also promoted the underlying purpose of the strike - that of achieving a resolution to the labour dispute favourable to the Union.

III. The Relevant Legislation 8 The relevant legislation is attached as an Appendix to these Reasons. 9 PIPA applies to a variety of non-governmental organizations, including labour unions, unincorporated associations, and corporations. The Act defines personal information as “information about an identifiable individual” (s. 1(1)(k)). Under the terms of the Act, organizations are permitted to collect, use and disclose personal information under limited circumstances, set out in detail in the Act. 10 At issue here are two exceptions to the applicability of PIPA — personal information collected, used or disclosed for journalistic purposes and “for no other purpose” (s. 4(3)(c)) and information that is “publicly available” (ss. 14(e), 17(e) and 20 (j)) as defined in s. 7 of the PIPA regulations, Personal Information Protection Act Regulation, Alta. Reg. 366/2003 (the Regulations).

IV. Adjudicator’s Decision (Order P2008-008; U.F.C.W., Local 401, Re, [2009] A.I.P.C.D. No. 10 (Alta. I.P.C.) (Gauk) 11 There were two preliminary issues before the Adjudicator. The first was whether she should defer the question of the constitutionality of PIPA to the Labour Relations Board since it had jurisdiction under the Administrative Procedures and Jurisdiction Act, R.S.A. 2000, c. A-3 to decide constitutional questions, while the Commissioner does not. The Adjudicator refused to defer. The second preliminary issue is a major focus of this judicial review application — whether the Act applied because the information collected, used and disclosed by UFCW was for “journalistic purposes” under s. 4(3)(c) of PIPA. 250 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

12 An issue raised on judicial review, but not before the Adjudicator, was whether the information collected, used or disclosed is publicly available as prescribed by the regulations (ss. 14(e), 17(e) and 20 (j)). Section 7 of the Regulations is limited to such things as information in phone books and directories and records held in registries and judicial or quasi-judicial bodies. It does not include references to attendances at public, social or political events. 13 The Adjudicator set out the issues as: Issue A: Is the Organization collecting, using or disclosing “personal information” as that term is defined in PIPA? Issue B: If the Organization is collecting, using or disclosing “personal information” as defined in PIPA, is it doing so in contravention of, or in compliance with, section 7(1) of PIPA? In particular, i. If the Organization is collecting, using or disclosing “personal information” as defined in PIPA, does it have authority to do so without consent, as permitted by sections 14, 17 and 20 of PIPA? ii. If the Organization does not have the authority to collect, use or disclose “personal information” without consent, is the organization obtaining consent in accordance with section 8 of the Act? Issue C: If the Organization is collecting “personal information” as defined in PIPA, is it doing so in contravention of, or in compliance with, section 13 of PIPA? In particular, is it i. required to provide, and ii providing, notification, before or at the time of collecting personal information, in accordance with section 13 of PIPA? Issue D: If the Organization is collecting, using or disclosing “personal information” as defined in PIPA, is the collection, use or disclosure contrary to, or in compliance with, sections 11(1), 16(1) and 19(1) of PIPA (collection, use and disclosure for purposes that are reasonable)? Issue E: If the Organization is collecting, using or disclosing “personal information” as defined in PIPA, is the collection, use or disclosure contrary to, or in compliance with, sections 11(2), 16(2) and 19(2) of PIPA (collection, use and disclosure to the extent reasonable for meeting the purposes)? 14 UFCW conceded before the Adjudicator that the photos and videos were “personal information” as defined in s. 1(k) of PIPA. U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 251

15 The Adjudicator first addressed UFCW’s preliminary issue, whether it could rely on s. 4(3)(c) of PIPA. UFCW conceded that the Adjudicator had no authority to find the section contrary to the Charter, but submitted that the Adjudicator should interpret the section in a manner consistent with the Charter. The Adjudicator held that dissemination to the public of information, including personal information, regarding the strike could be a journalistic purpose, but that the plain language of the section required that there be no other purpose. She found that there was no other possible interpretation of the section, rejecting the suggestion, first raised by the Alberta Teachers Association in Alberta Teachers’ Assn., Re, [2008] A.I.P.C.D. No. 28 (Alta. I.P.C.) (ATA) that “for no other purpose” be read as referring to an purpose “to defraud or mislead, defame or com- mit criminal libel” (at para. 16). She held that this suggested interpretation was inconsistent with the plain meaning of the phrase. 16 The Adjudicator noted that UFCW had, in its evidence and submissions, agreed that it collected, used and disclosed the pictures and videos for a number of reasons, and further that even if some of those reasons fell within journalistic purposes, the Union had as its underlying purpose the resolution of the labour dispute in its favour. As a result, the Union’s purpose cannot be said to have been purely journalistic. 17 The Adjudicator went on to find that the personal information that was collected, used and disclosed for the purpose of a possible investigation or legal proceeding was authorized by ss. 14(d), 17(d) and 20(f) and (m) of PIPA; that this was a reasonable purpose, and that any collection restricted to this purpose was reasonable. However, UFCW failed to provide notice that this was its purpose and therefore breached s. 13 of the Act. 18 Having found that some of the personal information collected, used and disclosed was authorized by ss. 14(d), 17(d) and 20(f), the Adjudica- tor then considered whether the other information collected, used or disclosed was collected, used or disclosed with consent. She concluded that none of the complainants had consented, either expressly or impliedly. 19 In concluding that the Union had failed to give notice that it was collecting the images for the purposes of an investigation or legal proceeding, the Adjudicator noted that if the collection had been continuing, she would have ordered that the Union remove the posters indicating that it intended to post the information it was collecting on its www.CasinoScabs.ca website. 252 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

20 The terms of her order required the Union to cease collecting personal information for purposes other than investigation or legal proceedings, in the absence of consent. She also ordered the Union to destroy any of the Complainants’ personal information still in its possession collected in contravention of the Act, including any retained personal information of the Casino Vice-President that was placed in the Union’s informational materials (posters and newsletters).

V. The Parties’ Submissions A. UFCW 1. Standard of review 21 UFCW asserts that because the only issue is the constitutionality of the relevant sections of PIPA, the usual standard of review analysis is unnecessary here. On such questions, the standard of review will always be correctness: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.).

2. PIPA breaches s. 2(b) of the Charter 22 UFCW says that certain provisions of PIPA are overbroad to the extent that they prevent the Union from collecting, using and disclosing personal information already in the public domain for any purpose, including a journalistic purpose. In particular, UFCW argues that PIPA prohibits a union from recording a picket-line in plain view and from publishing the recording in union publications and on union websites. 23 Further, UFCW suggests that the PIPA exceptions under s. 4(3)(c) of the Act and s. 7 of the Regulations do not apply to the Union and therefore infringe its freedom of expression. The journalistic purpose exception in s. 4(3)(c) includes the phrase “and for no other purpose”. As defined by the Adjudicator, organizations that engage in journalism and have some other purpose will never be included within the exception. This, the Union argues, limits the exception’s availability only to the mainstream press. 24 The second exception is for information that is “publicly available” (ss. 14(e), 17(e), and 20(j); “publicly available” is defined in s. 7 of the Regulations quite narrowly to include such information as that found in telephone books, business directories, registries, and judicial body records. Because of this limited exception, UFCW says not only can it not video or photograph the picket-line, it cannot describe in words in its U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 253

newsletters or flyers what happens in public if doing so would use or disclose personal information. 25 UFCW urges that these exceptions should be read down to include the circumstances at issue here.

3. Section 2(b) analysis 26 In Montreal (Ville) v. 2952-1366 Québec inc., 2005 SCC 62, [2005] 3 S.C.R. 141 (S.C.C.), the Supreme Court of Canada set out a three step analysis to determine whether government action has infringed s. 2(b) (at para. 56): 1. Does the activity have expressive content, thereby bringing it within s. 2(b) protection? 2. If so, does the method or location of this expression remove that protection? 3. If the expression is protected by s. 2(b), does the purpose or effect of the impugned legislation infringe s. 2(b). See also Irwin Toy Ltd. c. Québec (Procureur général), [1989] 1 S.C.R. 927 (S.C.C.). 27 UFCW argues that its collection, use and disclosure of the videos and photos has expressive content, as defined in Irwin Toy Ltd. (at 968-69): “Expression” has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning. That meaning is its content. Freedom of expression was en- trenched in our Constitution and is guaranteed in the Quebec Charter so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpop- ular, distasteful or contrary to the mainstream... We cannot, then, exclude human activity from the scope of guaranteed free expression on the basis of the content or meaning being conveyed. Indeed, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. Of course, while most human activity combines expressive and physical elements, some human activity is purely physical and does not convey or attempt to convey meaning. It might be difficult to characterize certain day-to-day tasks, like parking a car, as having expressive content. To bring such activity within the protected sphere, the plaintiff would have to show that it was performed to convey a meaning. For example, an unmarried person might, as part of a public protest, park in a zone reserved for spouses of government employees in order to express dissatisfaction or out- 254 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

rage at the chosen method of allocating a limited resource. If that person could demonstrate that his activity did in fact have expressive content, he would, at this stage, be within the protected sphere and the s. 2(b) challenge would proceed. [Emphasis added] 28 The Union notes that this is a very broad interpretation. Further the Supreme Court of Canada has confirmed that photos and videos convey meaning in R. v. Butler, [1992] 1 S.C.R. 452 (S.C.C.) (at 489-90). Gener- ally, activity that has some form of expression falls under s. 2(b). 29 However, the Union, in the interests of a complete examination of the issue, raises a contrary decision of this Court in Canada Safeway Ltd. v. Shineton (2007), 2007 ABQB 773, 444 A.R. 131 (Alta. Q.B.), a judicial review of a decision by a Commissioner under PIPA. Safeway had contacted the complainant’s employer to tell it that the employee had been caught shoplifting. The Commissioner concluded that this was personal information that was disclosed in contravention of PIPA. Canada Safeway Ltd. argued on judicial review that PIPA breached its rights under s. 2(b). Hart J. concluded that this kind of expression was not the kind of expression s.2(b) was intended to protect. UFCW submits that this decision was in error, and that the Chambers judge reached this conclusion without any analysis of whether there was expressive content in the disclosed information, whether the method or location of the expression removed the protection, and whether the purpose or effect of the legislation was to limit expression. 30 The Supreme Court of Canada has developed three internal exceptions to s. 2(b) protection of expression — the methods and location of the expression (Montreal (Ville)) and expression that imposes a significant burden on the government entity at issue (Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673 (S.C.C.)). Method relates to expression through means that are not consonant with Charter protection (for example, violence or threats of violence (Montreal (Ville), at para. 60). Loca- tion relates to whether the expression in the particular public place conflicts with the purposes which s. 2(b) is intended to serve (Montreal (Ville) at para. 74) or the location clearly undermines the values that un- derlie the guarantee (Montreal (Ville) at para. 72). Neither method or location are implicated here, and as UFCW notes, the Union here is not seeking a positive government action within the meaning of Baier (see also Haig v. R., [1993] 2 S.C.R. 995 (S.C.C.), at 1035; Delisle c. Canada (Sous-procureur g´en´eral), [1999] 2 S.C.R. 989 (S.C.C.), at para. 26). U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 255

31 In K Mart Canada Ltd. v. U.F.C.W., Local 1518, [1999] 2 S.C.R. 1083 (S.C.C.) and Pepsi-Cola Canada Beverages (West) Ltd. v. R.W.D.S.U., Local 558, 2002 SCC 8, [2002] 1 S.C.R. 156 (S.C.C.) the Supreme Court of Canada recognized that picketing includes a wide range of activities in the course of labour disputes, including expressive conduct that creates social pressure. 32 In K Mart Canada Ltd. the Court recognized the s. 2(b) interest of labour unions in communicating to the public (at para. 30): It is obvious that freedom of expression in the labour relations context is fundamentally important and essential for workers. In any labour dispute it is important that the public be aware of the issues. 33 In Pepsi-Cola Canada Beverages (West) Ltd. the Court noted (at paras. 27 and 31): In labour law, picketing is commonly understood as an organized ef- fort of people carrying placards in a public place at or near a business premises. The act of picketing involves an element of physical presence, which in turn incorporates an expressive component. Its purposes are usually twofold: first, to convey information about a labour dispute in order to gain support for its cause from other workers, clients of the struck employer, or the general public, and second, to put social and economic pressure on the employer, and often by extension, on its suppliers and clients... For the purposes of this appeal, we find it unnecessary to define picketing in a detailed and exhaustive manner. We proceed rather on the basis that picketing may involve a broad range of activities, from the “traditional” picket line where people walk back and forth carrying placards, to the dissemination of information through other means. [Emphasis added] 34 Further, the Court recognized that this expressive conduct falls deep within the expression intended to be protected under s. 2(b) (at para. 32): Picketing, however defined, always involves expressive action. As such, it engages one of the highest constitutional values: freedom of expression, enshrined in s. 2(b) of the Charter. This Court’s jurisprudence establishes that both primary and secondary picketing are forms of expression, even when associated with tortious acts: Dolphin Delivery, supra. The Court, moreover, has repeatedly reaffirmed the importance of freedom of expression. It is the foundation of a democratic society (see R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Butler, [1992] 1 S.C.R. 452). The core values which free expression promotes in- 256 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

clude self-fulfilment, participation in social and political decision- making, and the communal exchange of ideas. Free speech protects human dignity and the right to think and reflect freely on one’s circumstances and condition. It allows a person to speak not only for the sake of expression itself, but also to advocate change, attempting to persuade others in the hope of improving one’s life and perhaps the wider social, political, and economic environment. 35 UFCW notes that both the purpose and effect of the PIPA provisions are to restrict expression. In Irwin Toy Ltd., the Supreme Court set out the analysis for assessing purpose and effect (at 975-76). That analysis can be summarized as: 1. The characterization of government purpose must proceed from the standpoint of the guarantee in issue. 2. If the government has aimed to control attempts to convey a meaning either by: a. directly restricting the content of expression or b. by restricting a form of expression tied to content, its purpose trenches upon the guarantee. 3. If it aims only to control the physical consequences of conduct, its purpose does not trench upon the guarantee. 4. In determining whether the government’s purpose aims simply at harmful physical consequences, the question becomes: does the mischief consist in the meaning of the activity or the purported influence that meaning has on the behaviour of others, or does it consist, rather, only in the direct physical result of the activity. 36 UFCW submits that PIPA’s purpose is to restrict the content of expression — that is, to control the expression of a particular type of information, personal information. 37 Section 3 of PIPA sets out the Act’s objectives as: The purpose of this Act is to govern the collection, use and disclosure of personal information by organizations in a manner that recognizes both the right of an individual to have his or her personal information protected and the need of organizations to collect, use or disclose personal information for purposes that are reasonable. 38 Thus, the Union argues, the Act clearly trenches on the s. 2(b) guarantee and the analysis must shift to whether the restriction on freedom of expression can be justified under s. 1 of the Charter. U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 257

4. Section 1 39 The onus of justifying the limit of a right or freedom rests with the party seeking to uphold the limitation (Irwin Toy Ltd. at 986).The Su- preme Court of Canada’s test under s. 1 was set out in R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.), and can be summarized as: 1. Is the objective sought to be achieved by the impugned legislation related to concerns which are “pressing and substantial in a free and democratic society? 2. Are the means chosen by the government proportional to its objective? a. the limiting measures must be carefully designed, or rationally connected, to the objective; b. they must impair the right as little as possible; and c. their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgement of rights. 40 UFCW’s s. 1 analysis focuses on the two exceptions to the application of PIPA — the journalistic purpose exception and the publicly available exception, and submits that there is no pressing and substantial objective in defining these two exceptions so narrowly that they exclude the Union’s ability to record the picket line. In Vriend v. Alberta, [1998] 1 S.C.R. 493 (S.C.C.) the Supreme Court held that where the issue is the Applicant’s exclusion from the legislation, the appropriate question is whether there is a pressing and substantial objective to the exclusion (at para. 114). 41 UFCW notes that protection of privacy is important, but argues that to say that PIPA’s purpose as a whole is to protect privacy overstates the legislative objective. In particular, the Union notes that the Act provides for numerous exceptions, including for the traditional (or mainstream) media and for individuals. In fact, the Union notes PIPA’s purpose is to limit the conveyance of personal information in certain circumstances by certain persons. 42 In this connection, UFCW notes that the traditional media have additional purposes beyond purely journalistic purposes, like profit and editorial comment. Therefore, it argues, there is no pressing and substantial objective in treating the traditional media differently than others. 258 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

43 Moreover, UFCW submits that there is no pressing and substantial objective for narrowly defining what personal information is “publicly available”, suggesting that there is no reasonable expectation of privacy for information that is in plain view in places accessible to the public. 44 UFCW argues that there is no rational connection between the means chosen in the legislation and the legislation’s objective. If PIPA is aimed at protecting personal privacy in certain circumstances, there is no rational connection between protecting individual privacy and prohibiting the collection, use and disclosure of personal information that is already in public. In particular, UFCW posits that there is no reasonable expectation of privacy in public places, relying on the jurisprudence developed in the context of s. 8 of the Charter (search and seizure provision). 45 The Supreme Court of Canada has analyzed the privacy rights of an individual to control images of themselves in Aubry c. Editions´ Vice Versa Inc., [1998] 1 S.C.R. 591 (S.C.C.), and held that freedom of expression, in particular the artistic expression of a photograph, cannot justify the infringement of the right to privacy entailed in control of one’s own image. However, UFCW argues that Aubry is distinguishable as it involves the harmonization of the rights to privacy and freedom of expression in a Quebec statute, the Charter of Human Rights and Free- doms, R.S.Q., c. C-12. Alberta does not have a right to privacy in either the Charter or Alberta legislation. 46 The Union argues that there was no reasonable expectation of privacy here, noting the following factors, drawn from R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579 (S.C.C.)(at para. 27): 1. The personal information was accurate; 2. The information was already in plain view; 3. The information was where the public has access; 4. At a public demonstration; 5. There were no intimate or lifestyle details or other biographic information other than what the complainants chose to place in public view; and 6. The methods of collecting the information were not obtru- sive or offensive, since the images were recorded in the area of the picket-line - a political public event. 47 Further, both the Employer and West Edmonton Mall recorded the picket-line and therefore the complainants could not reasonably have expected that their images would not be captured. U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 259

48 Moreover, UFCW argues the impairment was neither minimal or proportionate. The tests for minimal intrusion and proportionality have been variously formulated as: • whether the law limits the right “as little as reasonably possible in order to achieve the legislative objective;” (K Mart Canada Ltd. at para.71) • whether there is proportionality between the salutary effects of the legislative objective and the deleterious effects on the right in question. (Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C.C.), at 889). 49 In these circumstances, the question is whether the positive effects of protecting personal information outweighs the negative effects on the Union’s freedom of expression. UFCW defines this as a contest between freedom of expression and the public interest in preventing the dissemination of personal information that an individual has already placed in the public realm by attending a public, political event, and concludes that given the lack of a reasonable expectation of privacy in the images, there is no powerful value justifying an infringement of the freedom of expression. 50 UFCW argues that in the labour relations context, freedom of expression, in particular the freedom of expression of the non-traditional media, is of fundamental importance in a free and democratic society, and that PIPA’s limitation on expression of information already in the public domain does not minimally impair the right and is disproportionate. 51 The Union notes that the Supreme Court has emphasized the importance of freedom of expression as a cornerstone of democratic society (see for example Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 (S.C.C.), at 1336). Further, the Court has highlighted the importance of labour expression, in particular, in a number of decisions, including K Mart Canada Ltd. (para. 25); and Pepsi-Cola Canada Beverages (West) Ltd. (paras. 33-35). In Pepsi-Cola Canada Beverages (West) Ltd., the Court held that picketing was a form of protected expression (paras. 80-82) and that picketing conveys information and is intended to persuade others. The LRC also reinforces the notion that picketing is intended to persuade others not to do business with the employer. Mockery and shaming are part of the history and purpose of picketlines (as set out in Prof. Taylor’s affidavit). 52 The Union goes on to note that the Supreme Court has set out three values underlying s. 2(b) expression: truth; discourse and participation in 260 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

social and political decision-making; and individual self-fulfillment and self-expression. UFCW submits that all three values are at issue here. In regards to truth, the recording of images provides an accurate record for safety and security, to respond to allegations against the Union, to use in Labour Relations Board hearings, to respond to the Employer’s video, to share with other media if asked, and to contribute to education programs. In regards to democratic discourse, the recording of picket-line images brings the debate into the public domain (Pepsi-Cola Canada Beverages (West) Ltd. at para. 35; K Mart Canada Ltd. at para. 73) and further enables the Union to fulfill the persuasive objective of picketing (Pepsi- Cola Canada Beverages (West) Ltd. at para. 27). Further, the expression addresses the historic imbalance between the Employer’s economic power and the vulnerable worker (Pepsi-Cola Canada Beverages (West) Ltd., para. 34). Moreover, the images were used to boost morale and to communicate with the Union members. 53 As Professor Taylor noted in his affidavit, historical records of picket-lines and strikes include photos, film and video, and these resources have been used to record significant labour events for educational, instructional, and research purposes. Expression in the labour context, says UFCW, is highly valued, widespread, and effective means of political expression with strong historical roots engaging core democratic values. 54 The Union asserts that PIPA, by limiting the journalistic purposes exception to effectively only traditional media, significantly curtails journalistic expression by the non-traditional media who may have other purposes beyond journalism. Further, union journalism is important to democratic debate and to informing the public regarding matters of social and political significance (Pepsi-Cola Canada Beverages (West) Ltd., para. 35; K Mart Canada Ltd., paras. 25, 29-30). The traditional media may not be interested in the details of a labour dispute, such as who crossed the picket-line, but that information should be available from some source. 55 Professor Taylor noted in his affidavit that there has been a significant decline in the coverage of labour news in the traditional media. In the end, the effect of the journalism exception in PIPA is that only the traditional media can reproduce a photo of a picket-line when reporting on a strike. The Union concludes that because the information is in plain view in a public place, there is no powerful value justifying the limitation of the Union’s freedom of expression. U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 261

B. The Attorney General 56 The Attorney General argues that PIPA creates an individual’s right to protect personal information when that information is collected, used or disclosed by private parties. The Union’s purpose in collecting and disclosing the complainants’ personal information was found by the Ad- judicator to include purposes other than journalism. The underlying purpose was to achieve a resolution of the strike that was favourable to the Union, in particular by dissuading people from crossing the picket line by threatening to post their images on the Union’s website. 57 The Attorney General argues that UFCW misreads PIPA when it asserts that the journalistic exception applies only to mainstream, traditional media. Rather, he argues, the Act does not prevent a union from reporting in a newsletter or website on matters of interest to its members or even on matters of wider public interest, unless in doing so, it discloses personal information. The Attorney General’s written submissions argue: ... the Union’s threat to publicize (and smear) patrons of Palace Ca- sino for its private purpose of inducing them to not cross a picket line illustrates exactly the sort of selfinterested interference with privacy that the Act seeks to prevent. Since the UFCW cannot plausibly claim that it is entitled to interfere with the complainants’ privacy in this way as a matter of constitutional right, it devotes itself to arguing instead that “certain sections of PIPA are contrary to the Charter and that the adjudicator’s Order is contrary to the Charter to the extent that it relies on those sections.” 58 The Attorney General submits that PIPA protects an individual’s “practical anonymity in public places” and argues that the Union’s reli- ance on the principle of “reasonable expectation of privacy” is mis- placed. A reasonable expectation of privacy is a concept developed in criminal law within the context of s. 8 of the Charter, prohibiting unreasonable search and seizure. He argues that the Act represents a balance of free expression and individuals’ control of their personal information, and concludes that the Act’s prohibition against the Union collecting people’s personal information to “persuasively threaten them with public shaming” is consistent with the Charter. 59 The Attorney General submits that the journalistic exception in s. 4(3)(c) of the Act is appropriate and does not apply to mainstream media exclusively. He notes that the Adjudicator assumed that journalistic purpose could include non-neutral and persuasive content, and that she was open to a non-traditional media source having a journalistic purpose. The 262 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

Adjudicator, he submits, decided against the Union because it collected personal information for purposes other than journalism. 60 The Union, the Attorney General argues, does not “attempt to defend its behaviour” or argue that it has a constitutional right “to invade people’s privacy to get what it wants from them”; rather the Union shifts the argument to whether non-traditional media can ever fall within the exception. The idea that an organization’s remote purposes are relevant to whether they fall within the journalism exception is a false premise. The Attorney General concedes that such a conclusion could be drawn from the Commissioner’s decision in Order P2007-014; Alberta Teachers’ Assn., Re, [2008] A.I.P.C.D. No. 28 (Alta. I.P.C.)5 , but submits that the Adjudicator there erred when she concluded that the Alberta Teachers’ Association did not have the authority under the Teaching Profession Act, R.S.A. 2000, c. T-2, to publish articles for purely journalistic purposes, and therefore did not fall within PIPA’s journalistic exception. The Attorney General submits that the organizational goals of a body are not relevant, only the immediate purpose of the disclosure of personal information. 61 The threats of “public exposure and ridicule for crossing the line” is what breaches the Act; if the Union were to report on a struck employer’s behaviour at a picket line to an interested public, that would likely comply with the Act. 62 The Attorney General takes further issue with UFCW’s argument that the Act infringes the Charter by limiting its expression in regards to personal information collected in public view. He notes that the Act is concerned with personal, not confidential, information, and that while personal information may be confidential and confidential information may be personal, the two are different. 63 In reference to the cases cited by UFCW, the Attorney General distin- guishes them. In Pepsi-Cola Canada Beverages (West) Ltd. the Supreme Court was balancing the union members’ s. 2(b) rights with other private rights, as the case concerned secondary picketing. The Court held that picketing is lawful expression no matter where it occurs, unless it in-

5Quashed on limitation grounds: A.T.A. v. Alberta (Information & Privacy Com- missioner) (2008), 1 Admin. L.R. (5th) 85, 21 Alta. L.R. (5th) 24 (Alta. Q.B.), aff’d 2010 ABCA 26, 474 A.R. 169 (Alta. C.A.), leave to appeal to S.C.C. granted, [2010] S.C.C.A. No. 100 (S.C.C.). U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 263

volves a recognized criminal or civil wrong (at paras. 73, 74 and 103). The Attorney General argues that this case is not about picketing, but about the Union’s collection, use and disclosure of personal information to support the effectiveness of its picket line. He submits that s. 3 of the Act provides that an organization may only collect, use and disclose personal information for “reasonable purposes”, and suggests that PIPA is no different than restrictions on expression that were accepted as striking a proper balance with Charter values in Pepsi-Cola Canada Beverages (West) Ltd. — for example the tort of inducing breach of contract. The only difference, he submits, is that tort law develops through judicial decisions while PIPA was enacted by the Legislature. He notes that the Charter does not apply to tort law, although common law courts consider Charter values in developing its doctrines. 64 The Attorney General, in asserting that PIPA is justified under s. 1, relies on the Supreme Court of Canada decision in Aubry, suggesting that the Court’s analysis of privacy interests and its balancing of private rights against free expression in non-Charter cases is appropriate to this situation. He argues that the Supreme Court identified the right to control one’s own image as integral to a right of privacy, and that therefore PIPA reflects a pressing and substantial goal — the right to protect personal information on display in a public place. 65 Further, the Attorney General submits that PIPA is proportional, rejecting UFCW’s submission that personal information in public view is unworthy of protection. In particular, the Attorney General argues that the Supreme Court’s commentary on the importance of control of one’s own identity conclusively establishes that UFCW’s argument is without merit. PIPA, he asserts, protects an individual’s right to control their identities from those who would collect, use and disclose their personal information for private purposes. 66 Moreover, the Supreme Court found no inconsistency between Char- ter values and constraints on expression in private law, and adopted an approach that treated “labour and nonlabour expression in a consistent manner” since there was “no principled ground on which to distinguish union speech” (Pepsi-Cola Canada Beverages (West) Ltd., at paras. 80 and 82). The Supreme Court in Aubry balanced the right to control one’s own image with the right to artistic expression, finding in favour of private life. 67 The Attorney General submits that the public’s interest in being informed is not in issue here since the Union video-recorded people with 264 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

the announced intention of publishing the images in its Casino Scabs website and for purposes other than evidence gathering. He submits that PIPA’s exemption for publishing personal information is broader than the Quebec legislation, since the Quebec law does not permit implicit consent to publication, while PIPA’s exceptions for journalistic and artistic purposes does. As a result, the Attorney General concludes that the balance struck in PIPA is to prevent private organizations from using others’ personal information for private purposes without consent, and therefore its limitation on free expression is proportionate to the goal of protecting individual privacy.

C. UFCW’s Reply Submissions 68 UFCW submits that the Attorney General’s submissions ask the Court to proceed on the basis that PIPA only prohibits expression aimed at dissuading people from crossing a picket line, when in fact PIPA also prohibits other kinds of expression. 69 Further, the Adjudicator found that the Union did not fall within the journalistic purpose exception because the Union had many purposes in addition to a journalistic purpose, but the Attorney General ignored this finding. The result of this analysis is that expression for any of these purposes violates PIPA. The Attorney General asks the Court to find that picket line expression is precisely the kind of expression that PIPA is aimed at curtailing, and then distorts the facts by suggesting that the Union threatened to put individual’s images on its website. However, the Union argues, PIPA is not concerned with threats, but with the collection, use and disclosure of personal information. Moreover, there was no evidence that UFCW put anyone’s image on their website without consent. 70 The Attorney General’s focus on this one of many UFCW’s admitted purposes in recording the picket line, the Union argues, is not a substantive response to the Union’s arguments that PIPA limits its freedom of expression and is not justified under s. 1 of the Charter. 71 UFCW points out that persuasion is the purpose of picketing, a point accepted by the Supreme Court as an important element in freedom of expression in Pepsi-Cola Canada Beverages (West) Ltd., but the Attor- ney General asks the Court of find that there is something unsavoury about this purpose, even going so far as to suggest that doing so amounts to a tort. The Union notes that s. 84(1) of the LRC expressly permits picketing for persuasive purposes; it provides that during a strike or lock- U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 265

out anyone may picket an employer in order to persuade anyone not to enter the employer’s place of business, deal in or handle the employer’s products, or do business with the employer. 72 UFCW further argues that the Attorney General misses the point of its argument in regards to the journalism exception when he argues that the Union can report on a strike without violating PIPA if it simply aban- dons its other purposes (persuasion, education, training). The Union’s purpose in reporting on a strike will always be, at a minimum, an exercise in persuasion aimed at convincing others to support the striking workers and not support the employer. Therefore, it would be difficult to imagine a circumstance in which a union could fall within the journalism exception. 73 The Union further submits that the Attorney General focuses on the concepts of “privacy” and “private information”, using them inter- changeably with “personal information” and ignoring the Union’s point that PIPA’s broad provisions are not rationally connected to protecting privacy since it deals with personal information that is not necessarily private. 74 Further, the Courts have found that there is no reasonable expectation of privacy in not only the criminal context, but also in civil insurance and employment cases involving video surveillance of plaintiffs in public places (presumably such surveillance by an employer falling within the definition of “organization” would run afoul of PIPA as well). The Union argues that logically if the Courts have found that there is no reasonable expectation of privacy in public places where the issue is surveillance by the state, then there is no reasonable expectation of privacy in public between private parties. The Union points to ss. 12(1)(d), 15(1)(d), and 18(1)(d) of British Columbia’s Personal Information Protection Act, S.B.C. 2003, c. 63 which provides an exception for personal information collection by observation at a performance, a sports meet or a similar event at which the individual voluntarily appeared and that is open to the public. 75 UFCW further submits that the decision in Aubry is distinguishable because the Court was balancing two rights protected in the Quebec Charter, privacy and expression; Alberta has no protection for privacy rights at common law, in statute, or in the Charter. The Union notes that the Aubry decision has been cited 203 times, but that only five of those decisions were outside of Quebec. Further, those decisions dealt with issues that are irrelevant to the balancing of freedom of expression; twice 266 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

dealing with intentional infliction of mental distress, once with appropri- ation of personality and passing off, once rejecting the contention that there was a tort of invasion of privacy and once to distinguish the facts. 76 While the Charter implicitly provides for the right to privacy in ss. 7 and 8, these sections only apply if there is an infringement of life, liberty or security of the person, or if there is a search or seizure. 77 The Supreme Court’s comments regarding the expectation of privacy in one’s image must be considered in the context of the facts at issue in Aubry; the individual’s picture was not taken at a political or public event and at issue was the photographer’s artistic expression. Moreover, the Court expressly noted that it might have struck the balance differently if the subject of the photo had been engaged in a public activity (at para. 27).

D. Additional Submissions 78 After argument was heard, the Alberta Court of Appeal issued its decision in Leon’s Furniture Ltd. v. Alberta (Information & Privacy Com- missioner), 2011 ABCA 94 (Alta. C.A.). I asked the parties if they wished to make further submissions in light of the Court of Appeal’s decision. 79 In Leon’s, the Court of Appeal quashed the Adjudicator’s decision that a furniture store violated PIPA when it recorded the driver’s license number and vehicle license plate of anyone picking up pre-purchased furniture. The Court held that PIPA reflected a balance between the competing values of the right to protect information and the need to use it, and that the Act did not give predominance to either value. 80 In its additional submissions, UFCW argued that PIPA protects personal information, whether private or not, and that the balancing of rights is between freedom of expression and the interest in controlling the dissemination of personal information. Thus, the Union argues, PIPA’s restrictions are overbroad, because there is no reasonable expectation of privacy for information in plain view in places accessible to the public, there is no rational connection between the provisions at issue and the goal of protecting privacy, and the restrictions do not minimally impair Charter rights and are disproportionate given the importance of labour relations expression and freedom of the press. 81 UFCW notes that the Court of Appeal held that PIPA imposes a reasonableness requirement on organizations when they collect, use and disclose personal information. The Union argues that there is no comparable U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 267

reasonableness requirement in s. 2(b) of the Charter, and in fact s. 2(b) protection extends to expression that has little value or is offensive. Fur- ther, expression in the context of a labour dispute enhances the values underlying freedom of expression. 82 The Court of Appeal in Leon’s indicated that it made no sense for the Adjudicator to find that everyone in the world can write down license plate numbers, but the appellant cannot (at para. 50). Similarly, the Union argues that the effect of the PIPA provisions in question is to prohibit organizations like the Union from collecting and using information in plain view in public, while individuals and the mainstream media have no similar restrictions. 83 In response, the Attorney General notes that the Court of Appeal held that a vehicle’s license plate number is not “personal information” for a number of reasons: 1. The license plate number identifies a vehicle, not its owner; 2. An owner may be indirectly identified through the license plate number, but Leon’s had no access to the database that would do so; and 3. License plates are required by law to be displayed in visible locations for the specific purpose of being recorded by anyone. 84 The Attorney General argues that it is not merely the public display that governs the Court’s reasoning, but the fact that the license plate is required by law to be displayed. This, he suggests, does not undermine the connection between a person’s image, which while publicly available remains personal information, and autonomy articulated in Aubry.

VI. Analysis A. Does PIPA infringe s. 2(b) 85 The Supreme Court of Canada set out a three step analysis to determine whether legislation or government action infringes s. 2(b): 1. Does the activity have expressive content? 2. Does the method or location of the expression remove the protection, or does the expression impose a significant burden on the government? 3. If the expression is protected, does the purpose or effect of the legislation infringe s. 2(b)? (Montr´eal (City) and Baier) 268 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

1. Does the recording of the picket line have expressive content? 86 While the Attorney General has attempted to define the Union’s activity as “a threat”, as a “smear”, as “self-interested interference with privacy”, and as invading “people’s privacy to get what it wants from them”, he has not directly challenged UFCW’s submission that its recording of the picket line by video and still photography has expressive content. In fact, the Attorney General expressly indicates that the Union’s threats of public exposure and ridicule for crossing the picket line is what breaches PIPA. That very description reflects that the Union’s activity conveys meaning. As the Supreme Court of Canada indicated in Irwin Toy Ltd. (at 969): We cannot, then, exclude human activity from the scope of guaranteed free expression on the basis of the content or meaning being conveyed. Indeed, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. 87 Moreover, the Supreme Court of Canada has confirmed that photos and videos convey meaning: Butler. 88 The Adjudicator expressly held that the Union’s purposes included disseminating information about the strike to the union members and to the public (at para. 27). Further, she found (at para. 26): I agree that a conclusion that an organization is subject to PIPA means that its disclosure of information must not conflict with the restrictions in the Act, and thus might restrict the organization’s speech rights insofar as exercise of these rights involves use or disclosure of personal information of third parties. 89 UFCW brought the Court’s attention to the decision in Canada Safeway Ltd. v. Shineton in which a judge of this Court held that s. 2(b) was not intended to protect the type of speech at issue there — Safeway’s report to a person’s employer that Safeway had caught the person shoplifting. The Court in that decision undertook no analysis of whether there was expressive content, concluding only that, “I am not satisfied that the disclosure Safeway made to Co-op is the kind of expression s. 2(b) of the Charter is meant to protect.” (at para. 44). Nor did he analyse whether the purpose or effect of PIPA infringe s. 2(b). 90 Moreover, the kind of speech at issue in Canada Safeway Ltd. is very different than the speech at issue here. Expression of labour interests in a strike or lock-out and related to picket line activity lie deep within the heart of protected expression. The Supreme Court has recognized picket- U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 269

ing as expressive action (Pepsi-Cola Canada Beverages (West) Ltd.) and that freedom of expression in the labour relations context is fundamentally important (K Mart Canada Ltd.). 91 I conclude that the activity of recording the picket line by video and still camera photography has expressive content.

2. Is the protection of s. 2(b) removed by virtue of method, location or burden on government? 92 There is no suggestion that the location of the activity conflicts with the purpose of s. 2(b), and it is clear that this is not a situation that imposes a positive obligation on the government. 93 The Attorney General does not expressly argue that the Union’s method of expression falls outside the purpose of s. 2(b). He does, however, characterize UFCW’s activity as threats, invasion of privacy, and smears, and from this it may be inferred that the thrust of Alberta’s argument is that these methods of expression are not those contemplated under s. 2(b). 94 The Attorney General further argues that PIPA protects an individual’s practical anonymity in public places and that this is a reasonable balance between free expression and an individual’s control of personal information. Therefore, he argues the Act is consistent with the Charter and Charter values. This argument appears to blend the balancing of interests that is to take place under the analysis of s. 1 of the Charter with the s.2(b) analysis of whether the method or location of the expression is consistent with Charter values. In my view, the Attorney General’s argument ignores the Supreme Court’s very broad interpretation of what expression is protected under s. 2(b) and that Court’s very narrow drawing of internal exceptions to that protection. 95 In Montr´eal (City) the Supreme Court noted that while content is always protected, the method (or form) of expressing the content may not be (at para. 60): ... this Court has found that violent expression is not protected by the Canadian Charter: Irwin Toy, at pp. 969-70. Violence is not excluded because of the message it conveys (no matter how hateful) but rather because the method by which the message is conveyed is not consonant with Charter protection. 96 In R. v. Keegstra, [1990] 3 S.C.R. 697 (S.C.C.), Dickson C.J. described the breadth of freedom of expression, and noted that the exception for violence did not extend to hate speech, but only to “expression 270 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

communicated directly through physical harm”. The exceptions are those in which the mode of expression at issue undermines freedom of expression (at 732): As I have explained, the starting proposition in Irwin Toy is that all activities conveying or attempting to convey meaning are considered expression for the purposes of s. 2(b); the content of expression is irrelevant in determining the scope of this Charter provision. Stated at its highest, an exception has been suggested where meaning is communicated directly via physical violence, the extreme repugnance of this form to free expression values justifying such an extraordinary step. Section 319(2) of the Criminal Code prohibits the communication of meaning that is repugnant, but the repugnance stems from the content of the message as opposed to its form. For this reason, I am of the view that hate propaganda is to be catego- rized as expression so as to bring it within the coverage of s. 2(b). 97 More recently Dechamps J. in Société Radio-Canada c. Québec (Procureur général), 2011 SCC 2 (S.C.C.), discussed the narrow exceptions (at para. 37): For either the method or the location of the conveyance of a message to be excluded from Charter protection, the court must find that it conflicts with the values protected by s. 2(b), namely self-fulfilment, democratic discourse and truth finding (City of Montréal, at para. 72). The following factors are relevant in this respect: (a) the historical or actual function of the location of the activity or the method of expression; and (b) whether other aspects of the location of the activity or the method of expression suggest that expression at that location or using that method would undermine the values underlying free expression (City of Montréal, at para. 74). However, the analysis must not be limited to the primary function of the method of expression or the location of the activity. For example, in ... Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084, City of Montréal and Greater Vancouver, this Court found that airports, hydro poles, city streets and buses are locations where engaging in certain expressive activities is not inconsistent with the other values s. 2(b) is meant to foster even though their primary function is not expression. 98 The expressive conduct at issue here, including what the Attorney General describes as “threats”, are part of UFCW’s picket-line activity. As noted by Professor Taylor, picket-lines have historically been part of unions’ ability to build solidarity and convince others not to do business U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 271

with a struck employer. He notes that picket-line activity has played an important role in creating public policy, and in articulating, advancing, communicating and enforcing union rights “in tandem with the broader rights that we identify with liberal democracy.” Thus, UFCW’s recording of persons crossing the picket-line is not inconsistent with freedom of expression, and it is also an important element of labour expression, re- flecting s. 2(b)’s goals of self-fulfilment, participation in social and political decision making, and the communal exchange of ideas. 99 The Attorney General attempts to distinguish the decision in Pepsi- Cola Canada Beverages (West) Ltd., noting that Pepsi-Cola Canada Beverages (West) Ltd. was concerned with secondary picketing and that the Supreme Court there balanced union members’ freedom of expression with others’ private rights. The Supreme Court held that picketing was lawful wherever it occurs, unless it involved either tortious or criminal activity. The Attorney General argues that this case is not about picketing, or the freedom to picket, but about the collection, use and disclosure of personal information by UFCW to support the effectiveness of its picket-line. As such, he argues, PIPA is a limitation on picketing no different than the restrictions on expression in tort and criminal law. He suggests that the only difference between tort law and PIPA is that tort law is developed by the Courts, while PIPA was enacted by the Legislature. 100 First, I do not accept the premise that this case is not about picket- lines. The expressive activity was intimately connected with, and part of, the Union’s picket-line. The evidence before the Adjudicator and the evidence of Professor Taylor is that recording picket-lines, either by film, video, or photograph, is a long-standing practice by both unions and employers. Second, PIPA is a legislative enactment, a restriction on freedom of expression by the Government of Alberta; torts or actions for breach of contract concern conflict between private individuals. In my view, they are not comparable. Nor is PIPA akin to criminal law. Third, this kind of balancing of interests in the context of a Charter challenge to legislation is to take place within the s. 1 analysis. 101 I conclude that threats of ridicule and public shaming, character smears, and invasion of privacy may be “hateful”, but the Union’s method of expression — photographs and videos printed on posters or posted on the internet — are not incompatible with free expression or inconsistent with Charter protections (CBC at para. 37). 272 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

3. Does the purpose or effect of PIPA infringe s. 2(b)? a. The Adjudicator’s interpretation of PIPA’s purpose 102 The Supreme Court of Canada in Irwin Toy Ltd. indicated that an analysis of the government’s purpose in enacting the impugned legislation must be assessed from the standpoint of the guarantee. Freedom of expression is the foundation of a democratic society, and promotes self- fulfilment, participation in social and political decision making, and the communal exchange of ideas; it protects human dignity and the right to think and reflect freely on one’s circumstances. It allows a person to speak not only for the sake of expression itself, but also to advocate change, attempting to persuade others in the hope of improving one’s life and perhaps the wider social, political, and economic environment. [Pepsi at para. 32] 103 The analysis, first set out in Irwin Toy Ltd., requires the Court to examine whether the legislation directly restricts the content of expression or restricts the form of information based on its content, or whether the restriction is tied to the physical consequences of the activity. 104 The Court in Irwin Toy Ltd. has given as an example of this distinction, the contrast between a prohibition against distributing pamphlets and a prohibition against littering. A rule against handing out pamphlets restricts the manner of expression, aims to control access to a meaning being conveyed and to control the pamphleteer’s ability to convey a meaning. A rule against littering is not a restriction “tied to content”. It aims to control the physical consequences of certain conduct regardless of whether that conduct attempts to convey meaning. It will not necessarily constitute an infringement on free speech. 105 The purpose of these particular sections of PIPA is to balance the protection of personal information with the need of organizations to collect, use or disclose personal information for reasonable purposes, as described by the Court of Appeal in Leon’s Furniture Ltd. Here we are concerned with a specific kind of personal information, the videos and photos of the picket line, and I have found that these had expressive content; I will not address whether other kinds of personal information are also expressive. 106 However, as far as the expression at issue here, PIPA, at least as interpreted by the Adjudicator, purposely and directly limits that expression by the Union. She concluded as much at paras. 26 and 27 of her decision. Under her interpretation, the purpose of the provisions in question is to directly control access to particular meanings: the disclosure of U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 273

personal information in the exercise of journalistic purpose if the organization has any other purpose, and the disclosure of personal information obtained at a public and political meeting.

b. Presumption of Constitutionality 107 On the basis of her interpretation of PIPA, the Adjudicator held that the Union had other purposes beyond journalistic purposes, and therefore did not come within the exception of s. 4(3)(c). This raises the question of the presumption of constitutionality; is there an interpretation of PIPA that does not restrict UFCW’s expression? 108 The Adjudicator held that PIPA restricted the Union’s speech rights insofar as exercise of these rights involved the use or disclosure of personal information of third parties, that the exception for collection of personal information by the Union for possible investigation or legal proceedings was authorized, but that the exception for journalistic purposes did not apply. Did the Adjudicator err in her interpretation of the statute? 109 This question was not directly addressed by the parties, as each argued on the basis that the Adjudicator had correctly interpreted the legislation. In my view, a full analysis requires me to address this issue. 110 If there are two equally probable purposes for the impugned legislation, and one of these purposes is valid, then the valid purpose is presumed to apply: R. v. Zundel, [1992] 2 S.C.R. 731 (S.C.C.); Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 (S.C.C.), at p. 1078,; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 (S.C.C.), at pp. 581-82. While the presumption of constitutionality was not raised expressly by the Attorney General,6 it can be inferred from his submission that UFCW has misinterpreted PIPA when it complains that the exceptions apply only to traditional media. Therefore it is necessary for me to interpret PIPA and the exceptions in question to determine whether their purpose is to limit expression.

6The Adjudicator referred to this principle (at para. 17). 274 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

111 The broad purpose of PIPA was recently described in the recent Court of Appeal decision in Leon’s Furniture Ltd. (at paras 34-35): The Personal Information Protection Act expressly states its overall purposes. This is a key to any interpretation and application of the statute. The most important provision is s. 3: 3 The purpose of this Act is to govern the collection, use and disclosure of personal information by organizations in a manner that recognizes both the right of an individual to have his or her personal information protected and the need of organizations to collect, use or disclose personal information for purposes that are reasonable. (Emphasis added) The statute recognizes two competing values: the right to protect information, and the need to use it. ... The statute does not give predominance to either of the two competing values, and any interpretation which holds that one must always prevail over the other is likely to be unreasonable. A balancing is called for. That balancing is not fully implemented by the other provisions of the Act. The balance called for by s. 3 must also be maintained by the Commissioner when assessing what is “reasonable”. The issue is not whether privacy rights are important. They are, as demonstrated by the cases discussed by Conrad J.A. at paras. 102- 114.The Legislature has deemed them to be important by passing the Act. But their admitted importance does not mean that privacy rights must predominate over all other societal needs, values and interests...The Act recognizes that a balancing of the various interests is called for, and it is inconsistent with any suggestion that privacy rights should always predominate over competing values. The statute cannot reasonably be interpreted in a way that prevents reasonable uses of personal information. 112 Moreover, in assessing whether the purpose of a legislative provision is constitutional, “the court [should] consider only the purpose of the provision itself and not the broader purpose of the surrounding legislation as a whole” (Delisle at para. 78). 113 The particular provisions in question are exceptions to the prohibition of collecting, using and disclosing personal information. The Act defines “personal information” very broadly as “information about an identifiable individual” and the parties have agreed that the pictures and video are personal information. The Act applies only to certain types of organizations, including unions, and excludes individuals. The Act provides U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 275

that it applies to all organizations under the Act and to all personal information, and prohibits the collection, use and disclosure of personal information without consent, except in limited circumstances. 114 The relevant circumstances here are the collection, use and disclosure of personal information: 1. for the purposes of an investigation or legal proceeding (ss. 14(d), 17(d), and 20(m)). In this case, as discussed earlier, the Adjudicator held that the Union’s collection, use and disclosure of personal information were authorized for in- vestigative and legal proceeding purposes, were for reasonable purposes, and that the information collected for this purpose only was reasonable, but that the Union had failed to give notice that this was its purpose; 2. where the information is publicly available, as defined in the Regulations (ss. 14(e), 17(e), and 20(j); 3. for journalistic purposes and for no other purpose (s. 4(3)(c)).

i. Publicly available 115 Section 7 of the Regulation defines when “information is publicly available” very narrowly7 , and none of the circumstances at issue fall within this exception. This question was not raised before, or addressed by, the Adjudicator. However, it is raised by UFCW on the basis that the narrow definition of when information is publicly available infringes the Union’s freedom of expression. It not only limits the Union’s ability to collect images in a public setting, but would prevent the Union from describing in words what happens in public, if that information contained personal information. Thus its effect restricts freedom of expression. 116 The Attorney General rejects UFCW’s submissions, saying that PIPA is concerned with personal, not confidential, information, and that the fact that the information is in public view does not render it less worthy of protection. I note, at this point, that the Attorney General’s position is inconsistent, as in other portions of his submissions he argues that the

7I note that a similar definition exists in s.1 of the Personal Information Protec- tion and Electronic Documents Act Regulations Specifying Publicly Available Information, SOR/2001-7, in reference to ss. 7(1)(d), (2)(c.1) and (3)(h.1) of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5. 276 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

Union’s activity constituted “invasion of privacy”, that it interfered with “practical anonymity”, that the purpose of PIPA is to protect privacy, and that the balancing of privacy interests and freedom of expression in Aubry was directly on point. 117 I conclude that both the purpose and effect of the narrow definition of “publicly available” infringes the Union’s rights under s. 2(b). Its freedom to express itself through video and photos taken at a public, political event is limited by the exclusion of such events from the definition of “publicly available”.

ii. Journalistic purpose 118 The Adjudicator found that the Union collected the personal information for many other purposes besides journalistic purposes. These purposes were listed by her as: • informing the public and picketing Union members; • dissuading people from crossing the picket line; • acting as a deterrent to violence; • creating material for use as a training tool for Union members; • providing material to other unions for educational purposes; • supporting morale on the picket line with the use of humour; • responding to similar activity on the part of the employer, and • deterring theft of Union property. As a result of these other purposes, she held that the Union could not rely on s. 4(3)(c), which was limited to “journalistic purpose and for no other purpose”. 119 The Adjudicator concluded that, given the Union’s evidence that it had these multiple purposes in collecting the information, there was no way to read the provision as applying to these circumstances, unless she were to ignore the words “and for no other purpose.” She rejected the Union’s submission that the words “and for no other purpose” were restricted to a purpose such as intent to defraud or mislead, defame or some other unlawful purpose. A similar submission had been made in Order P2007-014 (Alberta Teachers’ Assn., Re) and rejected by that Adjudica- tor there because it would be contrary to the ordinary meaning of the phrase. The adjudicator in the ATA decision did not accept that such an interpretation was necessary to achieve consistency between freedom of expression and PIPA. U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 277

120 The Adjudicator here agreed and concluded that the plain meaning of the section did not permit her to read the section in the narrow way suggested by the Union. Moreover, she held that even if such a reading was required to prevent the Act from offending the Charter, as an adjudicator under PIPA, she did not have the jurisdiction to do so. She further concluded that because UFCW had a stake in the outcome of the strike, it had a purpose beyond purely journalistic and could not come within the journalistic purpose exception. 121 The Adjudicator concluded that because “the Union had a stake in the outcome of the strike activity”, its purpose could not be “purely journalistic” (para. 28). This suggests that the Adjudicator concluded that “journalistic purposes” must be purely journalistic and neutral or independent. Seemingly then, her interpretation of the Act is that an organization with a stake in the outcome has less right to express its position, if that expression contains personal information, than an independent media source, even if its expression contains the same personal information. 122 The Attorney General argues that the journalistic purpose exception applies equally to both traditional and non-traditional media, noting that the Adjudicator was open to the possibility that organizations other than traditional media could come within the exception. The Attorney General argues that journalistic purpose could include non-neutral, persuasive content. He further rejects the suggestion that an organization’s “remote purpose” is relevant to the application of s. 4(3)(c); only the organization’s purpose in collecting, using and disclosing the personal information is relevant. I understand the Attorney General’s reference to “remote purpose” as reference to an organization’s purpose for existence and its ultimate goals or objectives. 123 Most non-media organizations will have a stake or interest in what they are reporting in their newsletters, information pamphlets, or posters. I agree with the Attorney General that an organization’s remote purpose is not relevant, but most such organizations will have a specific, immediate purpose behind their publication of information. This specific, immediate purpose may affect not only content, but also the purpose for collecting, using and disclosing the personal information. Therefore, I disagree with the Attorney General’s submission that the exceptions apply equally to traditional and non-traditional media, because non-traditional media may well have such additional purposes. 124 It is important to not expand constitutional analysis further than is necessary to decide the facts at issue. However, sometimes an analogous 278 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

hypothetical situation can illuminate the issues at stake. Consider the following hypothetical. 125 A community league constitutes an organization under PIPA (a not- for-profit organization). Under the Adjudicator’s interpretation, if the community league were to take a position in relation to supporting or opposing a development proposal within the community and organize a demonstration in support of that position, PIPA would prohibit it from taking photos or recording videos of the demonstration for use in its newsletters, information posters, or advertising because it had a stake in the outcome of the development application. This clearly represents a restriction on freedom of expression. 126 “Journalistic purpose” is not defined in the Act, nor did the Adjudica- tor undertake to define the term. She did, however, make some comments that reflect what she understood to be included within journalistic purposes: a. journalistic purpose could include information, including personal information, disseminated to the public by a union “rather than by the media” (para. 18); b. journalistic purpose may include persuasion, as well as information-provision as a goal (para. 27); and c. journalistic purpose may include levity akin to political satire (para. 27). 127 Professor Hackett, UFCW’s communication expert, defines journalism (at para. 5-6 of his affidavit) as: ... fact-based, truth oriented timely public communication on matters of public interest. It can be usefully divided into there main activities: (a) news reporting, (b) interpretation and the expression of opinion, and (c) providing a space for public conversation...... journalism has never been exclusively a tool for informing people about public affairs; it has also been a means of helping to make sense of them. Thus, interpretation of events and the expression of opinion have always been part of journalistic culture, and indeed the word “journalist” first described “the highly opinionated and politicized newspaper writers of post-revolutionary France.” For much of the nineteenth century, the press in Canada and the US was highly partisan... A third function of journalism involves providing a space for public conversation, a forum for the exchange of views. [Emphasis in original] U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 279

128 Professor Hackett’s affidavit goes on to discuss the increasingly po- rous line between journalism as a business and journalism as a process, activity or society-centric process. In the latter there is an emphasis on the social and political functions of journalism — “such as creating public space for information exchange and interaction, or maintaining social cohesion.” (at para. 14). 129 In keeping with the presumption of constitutionality, if it is possible to interpret legislation in a way that accords with the Charter and the Constitution, that interpretation is to be preferred. I find that the Adjudi- cator erred when she concluded that the Union could not have had a journalistic purpose, and no other purpose, because it had a stake in the outcome of the strike about which it was reporting. Based on Professor Hackett’s definition, it is possible to interpret “journalistic purpose” as including the following purposes listed by the Adjudicator: 1. informing the public and picketing Union members; 2. dissuading people from crossing the picket line; and 3. supporting morale on the picket line with the use of humour. 130 Moreover, creating material for use as a training tool for Union members and providing material to other unions for educational purposes, falls within information exchange and interaction and maintaining social cohesion discussed by Professor Hackett. 131 Three other purposes listed by the Adjudicator — acting as a deterrent to violence; deterring theft of Union property; and responding to similar activity on the part of the employer — all come within the purpose of gathering evidence should it become relevant to an investigation or legal proceeding, a purpose she found was authorized under sections 14(d), 17(d), and 20(f) and (m) of the Act. In my view, both deterrent functions are a side-effect of gathering evidence for an investigation or legal proceeding, and providing the Union’s side of the events in response to the employer’s recording of events, also logically falls within these sections. 132 Thus, I conclude that journalistic purpose can include persuasion, editorial comment, humour and education. However, the definition of “journalistic purposes” should not be drawn too broadly. I find it doubtful that the poster with “mug-shot” images of the Vice-President of the Casino displayed at the front entrance of the Casino was for “journalistic purposes”. Moreover, there was evidence that the Union indicated that it 280 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

would post the pictures and video it was recording on its web-site, “Casi- noScabs.ca”. While journalistic purpose may include persuasion, I find that this use goes beyond persuasion, approaching coercion. Casino employees and members of the public were told that if they crossed the picket-line, their images would be displayed on a website describing them as “scabs”, perhaps making them the subject of ridicule and derision. 133 What if the journalistic purpose for the collection, use and disclosure of personal information is in furtherance of another purpose? For example, a development decision sought by the organization, a legislative ini- tiative promoted by the organization, or the resolution of a labour dispute in the organization’s favour. As noted by the Adjudicator, s. 4(3)(c) clearly states that an organization must have no purpose other than journalistic in collecting, using and disclosing personal information. The effect of this section is to limit journalistic expression if the organization has any other purpose. I agree with the Adjudicator that this is the plain and ordinary meaning of the provision, and that there is no other possible interpretation. The suggestion that the provision be read as referring to no unlawful purposes cannot be sustained by the actual language of the section. 134 Thus I conclude that while journalistic purpose should be interpreted more broadly than that found by the Adjudicator, the end result is the same. UFCW had other purposes beyond journalistic purposes in collecting and disclosing the personal information, including obtaining a favourable resolution of the strike and using threats and ridicule to persuade people to not cross the picket-line. These do not come within the “journalistic purpose” exception in PIPA and, as asserted by the Attorney General, falls within the kind of expressive activity PIPA was intended to prohibit. 135 I conclude that the purpose of these exceptions in PIPA was to limit expression of personal information by organizations, including unions, where that expression includes personal information, even if one of its purposes, but not the only purpose, was journalistic. U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 281

B. Is the restriction on the Union’s freedom of expression justified under s. 1 of the Charter? 136 Alberta bears the onus of justifying the limit of a right or freedom (Irwin Toy Ltd. at 986). The Supreme Court of Canada’s test under s. 1 was set out in Oakes and can be summarized as: 1. Is the objective sought to be achieved by the impugned legislation related to concerns which are “pressing and substantial in a free and democratic society? 2. Are the means chosen by the government proportional to its objective? a. the limiting measures must be carefully designed, or rationally connected, to the objective; b. they must impair the right as little as possible; and c. their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgement of rights. This has been described as weighing the deleterious and salutary effects of the impugned regulation (see Hutterian Brethren of Wil- son Colony v. Alberta 2009 SCC 37, [2009] 2 S.C.R. 567 at para. 100). 137 Alberta, through its Attorney General, has lead no evidence to support its arguments justifying the limitations on freedom of expression contained in PIPA. Its written submissions and oral argument focussed primarily on the Union’s purpose in dissuading people from crossing the picket-line, arguing that this was a reasonable limitation on the Union’s right to free expression.

1. Is the objective of PIPA related to a pressing and substantial goal? 138 The Attorney General argued that PIPA has a pressing and substantial goal, relying on the Supreme Court of Canada’s decision in Aubry. In Aubry, an arts magazine published a photo of a young woman sitting on the steps of a building without her consent. The photo was taken in a public place. The Supreme Court described the issues as a balancing of the right to privacy under s. 5 of the Quebec Charter with the right to freedom of expression protected by s. 3 of the Quebec Charter. The 282 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

Court concluded that the right to one’s image was an element of the right to privacy under s. 5 of the Quebec Charter, noting (at paras. 52 and 53): ...that the purpose of the protection accorded to privacy is to guarantee a sphere of individual autonomy for all decisions relating to “choices that are of a fundamentally private or inherently personal nature”. If the purpose of the right to privacy guaranteed by s. 5 of the Quebec Charter is to protect a sphere of individual autonomy, that right must include the ability to control the use made of one’s image, since the right to one’s image is based on the idea of individual autonomy, that is, on the control each person has over his or her identity. It can also be stated that this control implies a personal choice... Since the right to one’s image is included in the right to respect for one’s private life, it is axiomatic that every person possesses a protected right to his or her image. This right arises when the subject is recognizable. There is, thus, an infringement of the person’s right to his or her image, and therefore fault, as soon as the image is published without consent and enables the person to be identified (Citations omitted) 139 The Attorney General argues that this establishes a pressing and substantial goal in protecting personal information on display in a public place. 140 There are two flaws in the Attorney General’s arguments on this point. First, the Quebec Charter has an express right to privacy. Alberta does not. There are privacy rights in the Canadian Charter in ss. 7 and 8, but they are only implicated if there is an infringement of life, liberty or security of the person, or if there is a search or seizure. 141 Secondly, PIPA, as the Attorney General points out, is not concerned with private information, but with personal information. Some personal information may be private, but that is not the same thing as saying that PIPA provides a right to privacy. 142 Moreover, the Quebec Charter enjoys quasi-constitutional status as human rights legislation: see Québec (Commission des droits de la personne & des droits de la jeunesse) c. Montréal (Ville), 2000 SCC 27, [2000] 1 S.C.R. 665 (S.C.C.) at paras. 27-28; Globe & Mail c. Canada (Procureur général), 2010 SCC 41, [2010] 2 S.C.R. 592 (S.C.C.) (at para. 29). Such statutes are to be interpreted differently, see Québec U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 283

(Commission des droits de la personne & des droits de la jeunesse) at para. 29: Professor R. Sullivan summarized as follows the rules of interpretation that apply to human rights legislation: (1) Human rights legislation is given a liberal and purposive interpretation. Protected rights receive a broad interpretation, while exceptions and defences are narrowly construed. (2) In responding to general terms and concepts, the approach is organic and flexible. The key provisions of the legislation are adapted not only to changing social conditions but also to evolving conceptions of human rights. 143 PIPA, however, is regulatory and does not establish human rights; it regulates the collection, use and disclosure of personal information, and in doing so limits the freedom of expression of some, but not all. For example, individuals would not be prevented from collecting, using and disclosing the personal information at issue here, nor would the traditional media. 144 PIPA’s general objective has a pressing and substantial goal, as stated in Leon’s Furniture Ltd. — the need to balance the right to protect information with the need to use it. The question here is whether there is a pressing and substantial goal in the narrow exceptions to the Act’s application that limit the Union’s right to record a picket-line taking place in public and to use and disclose those images for purposes other than journalistic ones. 145 UFCW submits that when the issue is the Applicant’s exclusion from legislation, the question is whether there is a pressing and substantial objective to the exclusion (Vriend). In other words, is there a pressing and substantial objective in defining: a. publicly available information so narrowly that it excludes information collected in public, and b. in defining journalistic purpose so that any organization that has both a journalistic purpose and some other purpose is excluded. 146 In Vriend, the Supreme Court was dealing with legislation that excluded a certain group from human rights protection; here the exceptions are part of a legislative balance of two competing interests. I do not find that the decision in Vriend is applicable. 284 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

147 I conclude that there is a pressing and substantial concern at stake here. PIPA’s goals are to strike a balance between protecting personal information with organizations’ needs to use such information. The ex- clusions for publicly available information and for journalistic purposes are part of that balancing. The question of whether the exceptions are too narrow goes to whether the means chosen to meet that objective are proportional.

2. Are the limiting measures rationally connected to the objective? a. Publicly available information 148 UFCW argues that the exception for publicly available information, limited essentially to published directories and the like, has no rational connection to the legislation’s objective. It notes that if PIPA is aimed at protecting individual privacy in certain circumstances, there is a rational connection between that objective and the infringement of some freedom of expression. But if the prohibition is against organizations’ collecting, using and disclosing personal information already in the public sphere, there is no rational connection. The Union notes that the Courts have found that there is no reasonable expectation of privacy in public places, and that thus no privacy to be protected. 149 The Attorney General’s response is first that personal information is not necessarily private, and secondly that the doctrine of reasonable expectation of privacy is only relevant to criminal law under s. 8 of the Charter. 150 The concept of reasonable expectation of privacy originated in criminal jurisprudence dealing with search and seizure. However, it has also been applied in civil cases by insurers and employers (see for example: A.T.U., Local 569 v. Edmonton (City), 2004 ABQB 280, 356 A.R. 228 (Alta. Q.B.); Milsom v. Corporate Computers Inc., 2003 ABQB 296, 17 Alta. L.R. (4th) 124 (Alta. Q.B.); Poliquin v. Devon Canada Corp., 2009 ABCA 216, 454 A.R. 61 (Alta. C.A.); Silber v. British Columbia Television Broadcasting System Ltd. (1985), [1986] 2 W.W.R. 609, 69 B.C.L.R. 34 (B.C. S.C.); Druken v. R.G. Fewer & Associates Inc. (1998), 171 Nfld. & P.E.I.R. 312, 58 C.R.R. (2d) 106 (Nfld. T.D.). 151 UFCW submits that the complainants did not have a reasonable expectation of privacy when crossing the picket-line, applying the factors set out in Patrick (at paras. 26-27). The information the Union gathered was in plain view in a place to which the public normally has access; the information does not include intimate details of the complainants’ lifes- U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 285

tyles or biographic information; nor was the information confidential records that had never been in the public domain; and the information was obtained in the vicinity of a picket-line — a political public event. 152 The Attorney General argues that there is some right to “practical anonymity” in public places and that the legislation rationally prevents private parties from using others’ private information for their own purposes. 153 The Attorney General further argues that the Supreme Court’s commentary on the significance of the control of one’s own identity in Aubry disposes of the Union’s argument on this point, suggesting that PIPA protects individuals’ control of their identities “against those who would collect, use and disclose their personal information for private purposes”. 154 I have already found that the Supreme Court’s decision in Aubry is distinguishable. While the Supreme Court’s commentary on the value of protecting the control of one’s own image and the relationship between that protection and autonomy is instructive, the Court was balancing a right to privacy with freedom of expression, not ascertaining whether there was a rational connection between regulatory legislation and restricting expression in the context of a labour dispute and a picket-line. 155 I agree that the complainants had no reasonable expectation of privacy. They were at not just a public place, but a public demonstration with important political and social implications. There is no rational connection between protecting privacy when the individuals in question are in public view. There is no right to “practical anonymity”. Further, PIPA does not prevent individuals or media from taping or photographing the people at the picket-line. That distinction alone invalidates the rational connection alleged by the Attorney General. 156 I find that there is no rational connection between protecting personal information and excluding public, political demonstrations, like the picket line, from the definition of “publicly available”.

b. Journalism exception 157 I conclude, however, that there is a rational connection between protecting privacy interests and prohibiting an organization from collecting, using or disclosing personal information because the organization has additional purposes beyond a journalistic purpose. Section 4(3)(c) attempts to balance the right to control personal information with the reasonable need to use that information. The Legislature chose to limit the exception to organizations that had a journalistic purpose; whether its restriction to 286 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

that purpose and no other is the least intrusive and is proportionate falls to be considered in the remainder of the s. 1 analysis.

3. Do the measures chosen impair freedom of expression as little as possible? 158 Although the measures chosen must impair the right as little as is reasonably possible in light of the legislative objective, the choice of where to draw the line need not be perfect. In RJR-Macdonald Inc. c. Canada (Procureur g´en´eral), [1995] 3 S.C.R. 199 (S.C.C.), McLachlin J., as she then was, noted that “[i]f the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor the objective to infringement...” (at para. 160). However, she continued, “on the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.” 159 I conclude that the impairment is not minimal. The narrow definition of “publicly available information” protects information in public view, and in which there is no reasonable expectation of privacy. The British Columbia’s Personal Information Protection Act strikes the balance by permitting collection, use, and disclosure of personal information collected by observation at a performance, a sports meet or a similar event at which the individual voluntarily appears, and that is open to the public (ss. 12(1)(d), 15(1)(d) and 18(1)(d)). PIPA has no exception for personal information collected at a public event, including a public, political event. 160 Moreover, personal information is not protected any further by prohibiting an organization with both a journalistic purpose and some other purpose from collecting, using and disclosing it, but not prohibiting an organization with only a journalistic purpose. This merely favours some organizations over others. Regardless of the prohibition on organizations with a journalistic purpose and some other additional purpose, the personal information could be collected, used and disclosed by another organization with only a journalistic purpose. 161 Further, the requirement that an organization’s only purpose be journalistic is an extreme, almost draconian, limitation on freedom of the press. Its impact is that an organization that has both a journalistic purpose and an underlying social or political goal that it wishes to promote and communicate journalistically will be prevented from communicating personal information, like videos and photos of a political demonstration. U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 287

I note that there are similar provisions in Personal Information Protec- tion and Electronic Documents Act, S.C. 2000, c. 5 (ss.4 and 7) and in the British Columbia Personal Information Protection Act (s. 3(2)(b)). Quebec, however, has handled it differently in An Act respecting the protection of personal information in the private sector, R.S.Q., c. P-39.1. The exception for journalistic purposes in s. 1 provides: This Act does not apply to journalistic, historical or genealogical material collected, held, used or communicated for the legitimate information of the public. (Emphasis added)

4. Do the salutary effects of PIPA outweigh its deleterious effects? 162 The recordings of the picket-line, by video and camera, are integral parts of the picketline. One of the purposes of picketing is to dissuade people from crossing the picket-line, by both providing information about the labour dispute and by mocking and attempting to shame people who cross the line to do business with the employer, as replacement workers, customers, or suppliers. The recordings accomplish both. As noted by Professor Taylor workers have engaged in picketing to communicate, educate and persuade. The picket line has been their most valua- ble tactic to maintain solidarity, to deter strikebreaking, bringing the dispute to the public’s attention, dissuading the public from doing business with the employer, and eliciting support from the broader labour move- ment and the public. Professor Taylor notes that the internet has ex- panded the scope and nature of the picket-line to generate global solidarity and create “cyber-picket-lines”. Mockery and shaming have been part of strike and picket-line expression since at least the 1890’s. 163 In Pepsi-Cola Canada Beverages (West) Ltd., the Supreme Court noted (at paras. 27 and 31): The act of picketing involves an element of physical presence, which in turn incorporates an expressive component. Its purposes are usually twofold: first, to convey information about a labour dispute in order to gain support for its cause from other workers, clients of the struck employer, or the general public, and second, to put social and economic pressure on the employer and, often by extension, on its suppliers and clients... We proceed ... on the basis that picketing may involve a broad range of activities, from the “traditional” picket line where people walk back and forth carrying placards, to the dissemination of information through other means. 288 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

164 Moreover, the Supreme Court has noted that expression in the labour relations context is of vital importance. In Pepsi-Cola Canada Beverages (West) Ltd., the Court noted (at paras. 33-35): Free expression is particularly critical in the labour context. As Cory J. observed for the Court in U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083, “ [f]or employees, freedom of expression becomes not only an important but an essential component of labour relations” (para. 25). The values associated with free expression relate directly to one’s work. A person’s employment, and the conditions of their workplace, inform one’s identity, emotional health, and sense of self-worth: Reference Re Public Service Employee Rela- tions Act (Alta.) , [1987] 1 S.C.R. 313; KMart, supra. Personal issues at stake in labour disputes often go beyond the obvious issues of work availability and wages. Working conditions, like the duration and location of work, parental leave, health benefits, severance and retirement schemes, may impact on the personal lives of workers even outside their working hours. Expression on these issues contributes to self-understanding, as well as to the ability to influence one’s working and non-working life. Moreover, the imbalance between the employer’s economic power and the relative vulnerability of the individual worker informs virtually all aspects of the employment relationship: see Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, at para. 92, per Iacobucci J. Free expression in the labour context thus plays a significant role in redressing or alleviating this imbalance. It is through free expression that employees are able to define and articulate their common interests and, in the event of a labour dispute, elicit the support of the general public in the furtherance of their cause: KMart, supra. As Cory J. noted in KMart, supra, at para. 46: “it is often the weight of public opinion which will determine the outcome of the dispute”. Free expression in the labour context benefits not only individual workers and unions, but also society as a whole. In Lavigne v. On- tario Public Service Employees Union, [1991] 2 S.C.R. 211, the reasons of both La Forest and Wilson JJ. acknowledged the importance of the role played by unions in societal debate (see also R. v. Ad- vance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70, and Dunmore v. Ontario (Attorney General) , [2001] 3 S.C.R. 1016, 2001 SCC 94). As part of the free flow of ideas which is an integral part of any democracy, the free flow of expression by unions and their members in a labour dispute brings the debate on labour conditions into the public realm. U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 289

165 Again, the Attorney General relies on the decision in Aubry as deter- minative. I note that the Supreme Court indicated that the balancing process in Aubry was dependent on context, and that the right to privacy entailed in the control of one’s own image may in other circumstances be curtailed where there is a public interest. In Aubry, the Court held that artistic expression did not justify infringement of the Quebec Charter’s right to privacy, but noted that the public interest might prevail where the person in the image is in a public place and is incidental to the photo, rather than the subject. The Court further suggests that a photograph of someone in a crowd at a sporting event or a demonstration, where “an individual’s own action, albeit unwitting, accidentally places him or her in the photograph” would not be an infringement of the privacy rights. Moreover, public interest in being informed may take precedence where the subject is engaged in public activity or has gained notoriety or finds himself in a high-profile role in a matter within public domain. 166 UFCW argues that expression in the labour context engages all of the values underlying freedom of expression — seeking and attaining truth, democratic discourse and participation in social and political decision- making, and individual self-fulfillment and human flourishing (Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 (S.C.C.) at para. 47). In particular the Union notes that for the purposes of seeking truth, it recorded the picket-line to have an accurate record; to assist democratic discourse by providing information to members and the public; and in terms of individual self-fulfillment, the record assisted employees in defining and articulating their common interests and elicit public support in order to redress the power imbalance between employer and workers. One of the major purposes of the communication at issue was to engage the public in social and political decision-making. Picket-lines, according to Professor Taylor, have been effective at engaging the public in pres- suring employers and government to resolve labour disputes (citing in particular the Gainers strike). 167 The Union also stresses the importance of freedom of the press as part of freedom of expression. The Supreme Court in R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477 (S.C.C.) noted that freedom of the press is not restricted to the mainstream media (at para. 40): As recently pointed out in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, the protection attaching to freedom of expression is not limited to the “traditional media”, but is enjoyed by “everyone” (in the words of s. 2(b) of the Charter) who chooses to exercise his or her freedom of expression on matters of public interest 290 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

whether by blogging, tweeting, standing on a street corner and shout- ing the “news” at passing pedestrians or publishing in a national newspaper. 168 I note, however, in the National Post decision, the Court was dealing with whether there should be a constitutional immunity given to journal- ists to protect their sources. The Court concluded that the s. 2(b) right did not extend to provide such immunity and required a case by case analysis. The Court continued in para. 40 to say: To throw a constitutional immunity around the interactions of such a heterogeneous and ill-defined group of writers and speakers and whichever “sources” they deem worthy of a promise of confidential- ity and on whatever terms they may choose to offer it (or, as here, choose to amend it with the benefit of hindsight) would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy. 169 Thus, while it is clear that alternative media are protected by s. 2(b), one must still consider the context. 170 UFCW relies on the affidavits of Professor Hackett who explains that union journalism is important in facilitating democratic debate, and of Professor Taylor who describes union journalism’s import both historically and currently. Professor Taylor describes how unions have en- hanced internal methods of communication, using such things as newsletters and strike bulletins, and indicates that labour journalism has become more important as the traditional media has decreased its coverage of labour issues. 171 Even if the impairment was minimal, it is not proportionate. The salutary effects of protecting personal information is minimal where the individual has chosen to be at a public, political event, and where individuals and the media could take the photographs and video without similar restriction. 172 The deleterious effects on the Union’s freedom of expression are severe. Under PIPA the Union cannot collect, use and disclose the information in its newsletters and leaflets for journalistic purposes, because it has other additional purposes. 173 Further, it cannot use the information it collected to mock “scabs” and the employer. The Adjudicator considered this use to be similar in nature to political satire, but even if this use is merely an adult version of “schoolyard teasing”, Alberta has not established that such a restriction is justified in a free and democratic society. U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 291

VII. Remedy 174 The Union, in its Originating Notice, sought a declaration that ss. 4(3)(c), 7(1), 8, 11, 13(1), 14, 16, 17, 19, 20 and 34 of PIPA and s. 7 of the PIPA Regulation must be construed and applied in a manner consistent with the Alberta Bill of Rights, RSA 2000, c. A-14. It did not pursue this in its written or oral submissions, and therefore I will not address this portion of the application. The Union also sought relief under s.2(d) (freedom of association) of the Charter, but this was also not addressed in submissions, and therefore I will not address the question of whether PIPA breaches s. 2(d). 175 The Supreme Court of Canada in Schachter v. Canada, [1992] 2 S.C.R. 679 (S.C.C.) set out the courts’ available remedial options when it has found that impugned legislation breaches the Charter (at para. 25): Depending upon the circumstances, a court may simply strike down, it may strike down and temporarily suspend the declaration of invalidity, or it may resort to the techniques of reading down or reading in. In addition, s. 24 of the Charter extends to any court of competent jurisdiction the power to grant an “appropriate and just” remedy to “[a]nyone whose [Charter] rights and freedoms ... have been infringed or denied”. In choosing how to apply s. 52 or s. 24 a court will determine its course of action with reference to the nature of the violation and the context of the specific legislation under consideration. 176 Reading in was discussed by the Court in Schachter (at paras. 52, 54- 55): While reading in is the logical counterpart of severance, and serves the same purposes, there is one important distinction between the two practices which must be kept in mind. In the case of severance, the inconsistent part of the statutory provision can be defined with some precision on the basis of the requirements of the Constitution. This will not always be so in the case of reading in. In some cases, the question of how the statute ought to be extended in order to comply with the Constitution cannot be answered with a sufficient degree of precision on the basis of constitutional analysis. In such a case, it is the legislature’s role to fill in the gaps, not the court’s. This point is made most clearly in Hunter v. Southam Inc., [1984] 2 S.C.R. 145 ... Hunter has been applied recently by Justice McLachlin in Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232. The issue in that case was the prohibition of advertising by the mem- 292 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

bers of a professional association, with certain exceptions. McLach- lin J. found that the regulation of advertising violated the Charter and extended too far to be justified under s. 1. However, some prohibition of advertising would be justifiable if additional exceptions were added. The question then arose whether the Court ought to supply those additional exemptions itself, or simply strike down the prohibition. McLachlin J. noted, at p. 253, that the drafting of rules which would allow only legitimate advertising would be a difficult and complex endeavour that did not flow with precision from the requirements of the Charter: I am conscious of the difficulties involved in drafting prohibitions on advertising which will catch misleading, deceptive and unprofes- sional advertising while permitting legitimate advertising. Since the exemptions could not be defined with sufficient precision, the section itself had to be struck down (at p. 252): Because the section is cast in the form of limited exclu- sions to a general prohibition, the Court would be required to supply further exceptions. To my mind, this is for the legislators. 177 Reading down was also addressed in Schachter v. Canada (at para. 58): In Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69, at p. 104, Justice Sopinka emphasized that it is necessary in fashioning a remedy for a Charter violation to both “apply the measures which will best vindicate the values expressed in the Charter” and “refrain from intruding into the legislative sphere beyond what is necessary”. He determined that reading down was not appropriate in that case but concluded, at p. 104: “Reading down may in some cases be the remedy that achieves the objectives to which I have alluded while at the same time constituting the lesser intrusion into the role of the legislature.” 178 A constitutional exemption is a further remedy considered by the courts. In Hutterian Brethren of Wilson Colony v. Alberta, 2006 ABQB 338, 398 A.R. 5 (Alta. Q.B.), aff’d 2007 ABCA 160 (Alta. C.A.) LoVecchio J. noted that a constitutional exemption is only available when a declaration of invalidity has been suspended (at para. 36-37): A constitutional exemption allows the Court to preserve legislation that may have an unconstitutional effect upon certain individuals, but is valid in most cases. As a remedy, it is not without controversy. The possibility of granting a constitutional exemption was suggested by the majority of the Supreme Court in R. v. Big M Drug Mart, [1985] U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 293

1 S.C.R. 295 and reiterated by Dickson C.J. in R. v. Edwards Books and Art Ltd. In R. v. Westfair Foods Ltd., the Court of Appeal concluded that a constitutional exemption was the appropriate remedy where the application of a Sunday closing law, the purpose of which was not unconstitutional, but which had an unconstitutional effect on some individuals, conflicted with the religious beliefs of those who did not keep Sunday holy. The Court concluded that, despite the difficulties that may arise in the application of the exemption, this more limited remedy was preferable to the difficulties that would arise from striking down the law altogether. More recently, however, the Supreme Court has suggested that the remedy of constitutional exemption should be limited to more narrow circumstances. In Corbiere v. Canada (Minister of Indian and Northern Affairs), McLachlin and Bastarache J.J. held, at para. 22: The remedy of constitutional exemption has been recognized in a very limited way in this Court, to protect the interests of a party who has succeeded in having a legislative provision declared unconstitutional, where the declaration of invalidity has been suspended. 179 Our Court of Appeal in Peavine M´etis Settlement v. Alberta (Minister of Aboriginal Affairs & Northern Development), 2009 ABCA 239, 457 A.R. 297 (Alta. C.A.) has recently commented on when it is appropriate to suspend a declaration of invalidity, citing Schachter (at para.80): A temporary suspension of such a declaration is only warranted in limited circumstances. According to the Supreme Court in Schacter v. Canada, [1992] 2 S.C.R. 679 at 719, 93 D.L.R. (4th) 1, the circumstances might warrant a temporary suspension: A. Striking down the legislation without enacting something in its place would pose a danger to the public; B. Striking down the legislation without enacting something in its place would threaten the rule of law; or C. The legislation was deemed unconstitutional because of underinclusiveness rather than overbreadth, and therefore striking down the legislation would result in the deprivation of benefits from deserving persons without thereby benefitting the individual whose rights have been violated. 180 The Union seeks the following other declarations: 1. An order quashing or setting aside the 2 the whole of Order P2008-008 of the Information and Privacy Commissioner 294 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

(the “Commissioner” and the “Order”), or, in the alternative, all portions of the Order except for: a. The finding and/or decision that the collection of personal information of the Complainants and others that was necessary for the purposes of an investigation or legal proceeding was in compliance with section 7(1) of the Personal Information Protection Act, S.A. 2003, c. P-6.5 (the ”Personal Information Pro- tection Act” or the ”Act”), was a reasonable purpose under section 11 (1) of the Act, and that the collection was reasonable for the purpose under s. II (2) of the Act (para. 111 of the Order and related paragraphs); b. The finding and/or decision that in using and disclosing the personal information of Complainant C by providing it to the police, for the purpose of effectively presenting evidence of an incident, the Union had authority under sections 17(d), 20(f) and (m) of the Act, and thus was in compliance with section 7(1) of the Act; and that the use and disclosure was for a reasonable purpose under sections 16(1) and 19(1) of the Act (para. 112 of the Order and related paragraphs); c. The Commissioner’s determination not to deal with section 59 of the Act (paras. 107-109 of the Order). 2. A declaration that the phrase “and for no other purpose” in section 4(3)(c) of the Personal Information Protection Act violates the freedom of expression protected under section 2(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK.), 1982, c. 11 (the ”Charter” and the “Constitution Act, 1982”) and the freedom of association protected under section 2(d) of the Charter, and these vio- lations are not demonstrably justified under section 1 of the Charter; and this portion of section 4(3)(c) of the Act is therefore of no force or effect. U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 295

3. A declaration that sections 7(1), 8, 11,13(1),14,16,17,19,20, and 34 of the Personal Information Protection Act, to the extent that they prohibit a trade union from: a. photographing or video-recording a picket line site and surroundings in the course of a lawful strike, including persons at that site or surroundings, and/or b. publishing or internet-posting such photographs or video-recordings in publications or websites of that trade union at the time of the strike or subsequently, violate the freedom of expression protected under section 2(b) of the Charter and the freedom of association protected under section 2(d) of the Charter, and these viola- tions are not demonstrably justified under section 1 of the Charter; and these sections should be read down as not applying in the circumstances set out above, or, in the alternative, should be declared of no force or effect. 4. A declaration that section 7 of the Personal Information Protection Act Regulation, AR 366/2003 (the ”Regula- tion”) providing that for purposes of sections 14(e), 17(e) and 20(j) of the Act, personal information does not come within the meaning of “the information is publicly available” except in the limited circumstances defined in that section, is, to the extent that it prohibits a trade union from: a. photographing or video-recording a picket line site and surroundings in the course of a lawful strike, including persons at that site or surroundings, and/or b. publishing or internet-posting such photographs or video-recordings in publications or websites of that trade union at the time of the strike or subsequently, in violation of the freedom of expression protected under section 2(b) of the Charter and the freedom of association protected under section 2(d) of the Charter, and this violation is not demonstrably justified under section 1 of the Charter; and an exception to cover the circumstances set out above should be read into this section of the Regula- tion, or, in the alternative, this section should be declared of no force or effect. 296 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

181 I have found that: a. The exception in s. 4(3)(c) of PIPA that applies only to an organization that has a journalistic purpose and no other purpose infringes s. 2(b) of the Charter and is not justified under s. 1 of the Charter; and b. The provisions in PIPA that prohibit an organization from collecting, using and disclosing personal information collected at a public, political demonstration, like a picket line, infringe s. 2(b) of the Charter and are not justified under s. 1 of the Charter. 182 Flowing from those findings is the conclusion that the Adjudicator’s decision must be quashed to the extent that it relies on the impugned provisions of PIPA. I therefore quash Order P2008-008 of the Informa- tion and Privacy Commissioner except for: a. The decision that the collection of the Complainants’ and others’ personal information necessary for the purposes of an investigation or legal proceeding was in compliance with section 7(1) of PIPA, was a reasonable purpose under section 11 (1) of the Act, and that the collection was reasonable for the purpose under s. II (2) of the Act (para. 111 of the Order; b. The decision that in using and disclosing the personal information of Complainant C by providing it to the police, for the purpose of effectively presenting evidence of an incident, the Union had authority under sections 17(d), 20(f) and (m) of the Act, and thus was in compliance with section 7(1) of the Act; and that the use and disclosure was for a reasonable purpose under sections 16(1) and 19(1) of the Act (para. 112 of the Order); c. The Commissioner’s determination not to deal with section 59 of the Act (paras. 107-109 of the Order). 183 I further grant a declaration that the phrase “and for no other purpose” in section 4(3)(c) of PIPA violates the freedom of expression protected under section 2(b) of the Charter, that this violation is not demonstrably justified under section 1 of the Charter; and this portion of section 4(3)(c) of the Act is therefore of no force or effect. 184 The Union’s proposes two possible remedies for the breach occa- sioned by the narrow definition of”publicly available” in s. 7 of the PIPA U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 297

Regulation. The first is to strike down the section, and the second is to read into the Regulation a provision that personal information is “publicly available” if it is collected, used or disclosed by a trade union that is: i. photographing or video-recording a picket line site and surroundings in the course of a lawful strike, including persons at that site or surroundings, and/or ii. publishing or internet-posting such photographs or video- recordings in publications or websites of that trade union at the time of the strike or subsequently, 185 Simply striking down s. 7 of the Regulation would not accomplish the purpose of addressing the limitation on freedom of expression, as the provision is under-inclusive. Striking down the section would extend, not limit, the limitation on expression of personal information. However, reading-in raises the problems discussed in Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc., 1984 CarswellAlta 121 (S.C.C.), and Rocket v. Royal College of Dental Surgeons (Ontario), 1990 CarswellOnt 1014 (S.C.C.) — achieving some precision without usurping the legislature’s role to fill in the gaps. As I have noted, the British Columbia legislature chose to extend the definition of publicly available to personal information collected at a performance, a sports meet or a similar event at which the individual voluntarily appeared and that is open to the public. The Alberta Legisla- ture might make a more narrow choice, perhaps limited to public political demonstrations, for example. 186 Further, to read into the s. 7 definition of publicly available an exception for trade unions recording and publishing picket-line activity is more like a constitutional exemption. It attempts to preserve legislation that has an unconstitutional effect on some individuals, but is valid in most cases. A constitutional exemption, however, is only available when a declaration of invalidity has been suspended. 187 A temporary suspension of a declaration of invalidity may be warranted when the legislation was found to be unconstitutional because of under-inclusiveness, and therefore striking down the legislation would result in the deprivation of benefits from deserving persons without bene- fiting the individual whose rights have been violated. 188 I find, therefore, that it would be appropriate to issue a declaration that section 7 of the Regulation is in violation of the freedom of expression protected under section 2(b) of the Charter, and this violation is not 298 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

demonstrably justified under section 1 of the Charter, to the extent that it prohibits a trade union from: i. photographing or video-recording a picket line site and surroundings in the course of a lawful strike, including persons at that site or surroundings, and/or ii. publishing or internet-posting such photographs or video- recordings in publications or websites of that trade union at the time of the strike or subsequently, 189 Further, s. 7 is therefore declared to be of no force or effect, but the declaration of invalidity will be suspended for 12 months. To protect the rights of trade unions, a constitutional exemption will be applied to the above circumstances during the term of the suspension, such that a trade union will not be prohibited from: i. photographing or video-recording a picket line site and surroundings in the course of a lawful strike, including persons at that site or surroundings, and/or ii. publishing or internet-posting such photographs or video- recordings in publications or websites of that trade union at the time of the strike or subsequently 190 I conclude that the declaration sought by the Union regarding ss. 7(1), 8, 11, 13(1), 14, 16, 17, 19, 20, and 34 of PIPA is unnecessary in light of the above declarations.

VIII. Conclusion 191 Accordingly, I grant U.F.C.W.’s application for judicial review. 192 The parties may speak to costs within 90 days of the issuance of this decision. Application granted.

Appendix

Personal Information Protection Act, S.A. 2003, c. P-6.5 1(1) In this Act, (i) “organization” includes (i) a corporation, (ii) an unincorporated association, U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 299

(iii) a trade union as defined in the Labour Re- lations Code, (iv) a partnership as defined in the Partnership Act, and (v) an individual acting in a commercial capacity, but does not include an individual acting in a personal or domestic capacity; (k) “personal information” means information about an identifiable individual; 2 Where in this Act anything or any matter (a) is described, characterized or referred to as reasonable or unreasonable, or (b) is required or directed to be carried out or otherwise dealt with reasonably or in a reasonable manner, the standard to be applied under this Act in determining whether the thing or matter is reasonable or unreasonable, or has been carried out or otherwise dealt with reasonably or in a reasonable manner, is what a reasonable person would consider appropriate in the circumstances. 3 The purpose of this Act is to govern the collection, use and disclosure of personal information by organizations in a manner that recognizes both the right of an individual to have his or her personal information protected and the need of organizations to collect, use or disclose personal information for purposes that are reasonable. 4(1) Except as provided in this Act and subject to the regulations, this Act applies to every organization and in respect of all personal information. ... (3) This Act does not apply to the following: (b) the collection, use or disclosure of personal information if the collection, use or disclosure, as the case may be, is for artistic or literary purposes and for no other purpose; (c) the collection, use or disclosure of personal information, other than personal employee information that is collected, used or disclosed pursuant to section 15, 18 or 21, if the collection, use or disclosure, as the case may be, is for journalistic purposes and for no other purpose; 300 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

(d) the collection, use or disclosure of an individual’s business contact information if the collection, use or disclosure, as the case may be, is for the purposes of enabling the individual to be contacted in relation to the individual’s business responsibilities and for no other purpose; 7(1) Except where this Act provides otherwise, an organization shall not, with respect to personal information about an individual, (a) collect that information unless the individual consents to the collection of that information, (b) collect that information from a source other than the individual unless the individual consents to the collection of that information from the other source, c) use that information unless the individual consents to the use of that information, or (d) disclose that information unless the individual consents to the disclosure of that information. (2) An organization shall not, as a condition of supplying a product or service, require an individual to consent to the collection, use or disclosure of personal information about an individual beyond what is necessary to provide the product or service. (3) An individual may give a consent subject to any reasonable terms, conditions or qualifications established, set, approved by or otherwise acceptable to the individual. 8(1) An individual may give his or her consent in writing or orally to the collection, use or disclosure of personal information about the individual. (2) An individual is deemed to consent to the collection, use or disclosure of personal information about the individual by an organization for a particular purpose if (a) the individual, without actually giving a consent referred to in subsection (1), voluntarily provides the information to the organization for that purpose, and (b) it is reasonable that a person would voluntarily provide that information. (2.1) If an individual consents to the disclosure of personal information about the individual by one organization to another organization for a particular purpose, the individual is U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 301

deemed to consent to the collection, use or disclosure of the personal information for the particular purpose by that other organization. (2.2) An individual is deemed to consent to the collection, use or disclosure of personal information about the individual by an organization for the purpose of the individual’s enrolment in or coverage under an insurance policy, pension plan or benefit plan or a policy, plan or contract that provides for a similar type of coverage or benefit if the individual (a) has an interest in or derives a benefit from that policy, plan or contract, and (b) is not the applicant for the policy, plan or contract. (3) Notwithstanding section 7(1), an organization may collect, use or disclose personal information about an individual for particular purposes if (a) the organization (i) provides the individual with a notice, in a form that the individual can reasonably be expected to understand, that the organization intends to collect, use or disclose personal information about the individual for those purposes, and (ii) with respect to that notice, gives the individual a reasonable opportunity to decline or object to having his or her personal information collected, used or disclosed for those purposes, (b) the individual does not, within a reasonable time, give to the organization a response to that notice declining or objecting to the proposed collection, use or disclosure, and (c) having regard to the level of the sensitivity, if any, of the information in the circumstances, it is reasonable to collect, use or disclose the information as permitted under clauses (a) and (b). (4) Subsections (2), (2.1), (2.2) and (3) are not to be construed so as to authorize an organization to collect, use or disclose personal information for any purpose other than the particular purposes for which the information was collected. (5) Consent in writing may be given or otherwise transmitted by electronic means to an organization if the organization receiving that transmittal produces or is able at any time to produce 302 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

a printed copy or image or a reproduction of the consent in paper form. 11 (1) An organization may collect personal information only for purposes that are reasonable. (2) Where an organization collects personal information, it may do so only to the extent that is reasonable for meeting the purposes for which the information is collected. 13(1) Before or at the time of collecting personal information about an individual from the individual, an organization must notify that individual in writing or orally (a) as to the purposes for which the information is collected, and (b) of the name or position name or title of a person who is able to answer on behalf of the organization the individual’s questions about the collection. 14 An organization may collect personal information about an individual without the consent of that individual but only if one or more of the following are applicable: ... (d) the collection of the information is reasonable for the purposes of an investigation or a legal proceeding; (e) the information is publicly available as prescribed or otherwise determined by the regulations; 16 (1) An organization may use personal information only for purposes that are reasonable. (2) Where an organization uses personal information, it may do so only to the extent that is reasonable for meeting the purposes for which the information is used. 17 An organization may use personal information about an individual without the consent of the individual but only if one or more of the following are applicable: ... (d) the use of the information is reasonable for the purposes of an investigation or a legal proceeding; (e) the information is publicly available as prescribed or otherwise determined by the regulations; 19 (1) An organization may disclose personal information only for purposes that are reasonable. U.F.C.W., Local 401 v. Alberta (I.P.C.) J.H. Goss J. 303

(2) Where an organization discloses personal information, it may do so only to the extent that is reasonable for meeting the purposes for which the information is disclosed. 20 An organization may disclose personal information about an individual without the consent of the individual but only if one or more of the following are applicable: (j) the information is publicly available as prescribed or otherwise determined by the regulations; (m) the disclosure of the information is reasonable for the purposes of an investigation or a legal proceeding; 34 An organization must protect personal information that is in its custody or under its control by making reasonable security arrangements against such risks as unauthorized access, collection, use, disclosure, copying, modification, disposal or destruction. Personal Information Protection Act Regulation, A.R. 366/2003 7 For the purposes of sections 14(e), 17(e) and 20(j) of the Act, personal information does not come within the meaning of “the information is publicly available” except in the following circumstances: (a) the personal information is contained in a telephone directory ... (b) the personal information, including, but not limited to, the name, title, address, telephone number and e mail address of an individual, is contained in a professional or business directory, listing or notice ... (c) the personal information is contained in a registry... (d) the personal information is contained in a record of a quasi judicial body... (e) the personal information is contained in a publication, including, but not limited to, a magazine, book or newspaper, whether in printed or electronic form, but only if (i) the publication is available to the public, and (ii) it is reasonable to assume that the individual that the information is about provided that information; (f) personal information that is under the control of an organization and that has been collected from outside of Alberta, that if collected from within Alberta would have been collected under the authority of clause (a), (b), (c), (d) or (e), or any 2 or more of those clauses. 304 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

Labour Relations Code, R.S.A. 2000, c. L-1 84 (1) Subject to subsection (2), during a strike or lockout that is permitted under this Act anyone may, at the striking or locked out employees’ place of employment and not elsewhere, in connection with any labour relations dispute or difference and without acts that are otherwise unlawful, peacefully engage in picketing to persuade or endeavour to persuade anyone not to (a) enter the employer’s place of business, operations or employment, (b) deal in or handle the products of the employer, or (c) do business with the employer. (2) On the application of any person affected by the strike or lockout the Board may, in addition to and without restricting any other powers under this Act including the powers of the Board with respect to section 154, (a) determine whether any premises are the place of employment for the purposes of subsection (1), and (b) regulate persons and trade unions who act in respect of activities under subsection (1) and by order declare what number of persons may act under that subsection, determine the location and time of that action and make any other declarations that the Board considers advisable. (3) When the Board makes a determination or order under subsection (2) it shall consider the following: (a) the directness of the interest of persons and trade unions acting under subsection (1), (b) violence or the likelihood of violence in connection with actions under subsection (1), (c) the desirability of restraining actions under subsection (1) so that the conflict, dispute or difference will not escalate, and (d) the right to peaceful free expression of opinion. H. (D.W.) v. R. (D.J.) 305

[Indexed as: H. (D.W.) v. R. (D.J.)] D.W.H. (Applicant) and D.J.R. and D.D. (Respondents) and The Minister of Justice and Attorney General of Alberta (Intervener) Alberta Court of Queen’s Bench Docket: Calgary FL01-11127 2011 ABQB 608 S.M. Bensler J. Heard: April 20, 2011 Judgment: October 12, 2011* Constitutional law –––– Charter of Rights and Freedoms — Nature of rights and freedoms — Equality rights — General principles –––– H was in same- sex relationship with defendant R, when they cooperated with another couple, C and defendant D, to have children via donor insemination — Child, S, was born in May 2003 — S lived with and was cared for by H and R — Following H and R’s break-up, defendants refused to allow H any contact with S — At trial, H was granted access to S — H sought order for declaration of guardianship in relation to S — H brought application for declaration that his rights under s. 15 of Canadian Charter of Rights and Freedoms were infringed by Family Law Act (“FLA”) and Vital Statistics Act (“VSA”) — Application granted in part — H failed to demonstrate that VSA violated his s. 15 Charter rights — However, s. 13(2) of FLA was discriminatory in failing to recognize H as parent in addition to D retaining her parental status — H, as gay male parent, was forced to endure legal process in order to have his guardianship and parentage recognized — Vio- lation was not demonstrably justified under s. 1 of Charter — When same-sex male parents were involved, FLA did not achieve its goal of protecting children through naming of identifiable parent — FLA did not minimally impair equality rights of homosexuals — FLA did not balance needs of children, birth mothers, and any intended parents against discriminatory effects created towards homosexuals wishing to raise family. Constitutional law –––– Charter of Rights and Freedoms — Nature of remedies under Charter — General principles –––– H was in same-sex relationship with defendant R, when they cooperated with another couple, C and defendant D, to have children via donor insemination — Child, S, was born in May 2003 — S lived with and was cared for by H and R — Following H and R’s

*Additional reasons at H. (D.W.) v. R. (D.J.) (2011), 2011 ABQB 791, 2011 CarswellAlta 2178 (Alta. Q.B.). 306 ALBERTA LAW REPORTS 53 Alta. L.R. (5th) break-up, defendants refused to allow H any contact with S — At trial, H was granted access to S — H sought order for declaration of guardianship in relation to S — H brought application for declaration that his rights under s. 15 of Cana- dian Charter of Rights and Freedoms were infringed by Family Law Act (“FLA”) and Vital Statistics Act (“VSA”) — Application granted in part — H failed to demonstrate that VSA violated his s. 15 Charter rights — However, s. 13(2) of FLA was discriminatory in failing to recognize H as parent in addition to D retaining her parental status — Sections 12 and 13 of FLA were repealed as of August 1, 2011 — Reading in language acknowledging parental status of men in same-sex relationships who utilized assisted conception would have been unacceptable intrusion into legislative domain — Award of damages was also inappropriate, as H failed to demonstrate any bad faith or negligence on part of Legislature. Family law –––– Relationship of parent and child — Effect of statutory provisions –––– H was in same-sex relationship with defendant R, when they cooperated with another couple, C and defendant D, to have children via donor insemination — Child, S, was born in May 2003 — S lived with and was cared for by H and R — Following H and R’s break-up, defendants refused to allow H any contact with S — At trial, H was granted access to S — H sought order for declaration of guardianship in relation to S — H brought application for declaration that his rights under s. 15 of Canadian Charter of Rights and Freedoms were infringed by Family Law Act (“FLA”) and Vital Statistics Act (“VSA”) — Ap- plication granted in part — H failed to demonstrate that VSA violated his s. 15 Charter rights — However, s. 13(2) of FLA was discriminatory in failing to recognize H as parent in addition to D retaining her parental status — H was declared to be legal parent of S — H acted as one of primary caregivers to S for first three years of her life — H and R acted as de facto parents towards S and jointly provided for her necessities of life — It would have been contrary to S’s best interests to be limited to legal recognition of sole parent, D — There was no other method of correcting for this deprivation outside of exercise of parens patriae jurisdiction. Family law –––– Costs — In family law proceedings generally — Persons entitled to or liable for costs — Costs against Crown –––– H was in same-sex relationship with defendant R, when they cooperated with another couple, C and defendant D, to have children via donor insemination — Child, S, was born in May 2003 — S lived with and was cared for by H and R — Following H and R’s break-up, defendants refused to allow H any contact with S — At trial, H was granted access to S — H sought order for declaration of guardianship in relation to S — H brought application for declaration that his rights under s. 15 of Canadian Charter of Rights and Freedoms were infringed by Family Law Act (“FLA”) and Vital Statistics Act (“VSA”) — Application granted in part — H failed to demonstrate that VSA violated his s. 15 Charter rights — However, s. H. (D.W.) v. R. (D.J.) 307

13(2) of FLA was discriminatory in failing to recognize H as parent in addition to D retaining her parental status — H was awarded costs to be calculated using column three of tariff, plus all reasonable disbursements — Although H was not wholly successful, he had success on principal issue — This was proper case for award of costs on increased scale, having regard to public interest in such litigation and complexity of issues involved. Constitutional law –––– Procedure in constitutional challenges — Costs –––– H was in same-sex relationship with defendant R, when they cooperated with another couple, C and defendant D, to have children via donor insemination — Child, S, was born in May 2003 — S lived with and was cared for by H and R — Following H and R’s break-up, defendants refused to allow H any contact with S — At trial, H was granted access to S — H sought order for declaration of guardianship in relation to S — H brought application for declaration that his rights under s. 15 of Canadian Charter of Rights and Freedoms were infringed by Family Law Act (“FLA”) and Vital Statistics Act (“VSA”) — Application granted in part — H failed to demonstrate that VSA violated his s. 15 Charter rights — However, s. 13(2) of FLA was discriminatory in failing to recognize H as parent in addition to D retaining her parental status — H was awarded costs to be calculated using column three of tariff, plus all reasonable disbursements — Although H was not wholly successful, he had success on principal issue — This was proper case for award of costs on increased scale, having regard to public interest in such litigation and complexity of issues involved. Family law –––– Constitutional issues — General principles. Cases considered by S.M. Bensler J.: A. (A.) v. B. (B.) (2007), 2007 CarswellOnt 2, 150 C.R.R. (2d) 110, 220 O.A.C. 115, 35 R.F.L. (6th) 1, 83 O.R. (3d) 561, 278 D.L.R. (4th) 519, 2007 ONCA 2, EYB 2007-112046, [2007] O.J. No. 2 (Ont. C.A.) — considered Alliance for Marriage & Family v. A. (A.) (2007), (sub nom. A. (A.) v. B. (B.)) 285 D.L.R. (4th) 255, (sub nom. A.A. v. B.B.) 231 O.A.C. 395, [2007] 3 S.C.R. 124, 2007 SCC 40, 2007 CarswellOnt 5681, 2007 CarswellOnt 5682, 45 C.P.C. (6th) 280, 42 R.F.L. (6th) 1, (sub nom. A.A. v. B.B.) 368 N.R. 384 (S.C.C.) — considered Andrews v. Law Society (British Columbia) (1989), 10 C.H.R.R. D/5719, [1989] 2 W.W.R. 289, 56 D.L.R. (4th) 1, 91 N.R. 255, 34 B.C.L.R. (2d) 273, 25 C.C.E.L. 255, 36 C.R.R. 193, [1989] 1 S.C.R. 143, 1989 CarswellBC 16, 1989 CarswellBC 701, EYB 1989-66977, [1989] S.C.J. No. 6 (S.C.C.) — referred to B. (R.) v. Children’s Aid Society of Metropolitan Toronto (1995), 9 R.F.L. (4th) 157, 21 O.R. (3d) 479 (note), 122 D.L.R. (4th) 1, [1995] 1 S.C.R. 315, 26 C.R.R. (2d) 202, (sub nom. Sheena B., Re) 176 N.R. 161, (sub nom. Sheena B., Re) 78 O.A.C. 1, 1995 CarswellOnt 105, 1995 CarswellOnt 515, EYB 1995-67419, [1994] S.C.J. No. 24 (S.C.C.) — followed 308 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

C. (A.R.) v. C. (L.L.) (1999), (sub nom. C. (L.L.) v. C. (A.R.)) 180 D.L.R. (4th) 361, 1999 CarswellAlta 868, 72 Alta. L.R. (3d) 300, [2000] 1 W.W.R. 425, 256 A.R. 311, 1999 ABQB 707, 39 C.P.C. (4th) 324, [1999] A.J. No. 1075 (Alta. Q.B.) — referred to Canadian Newspapers Co. v. Canada (Attorney General) (1986), 12 C.P.C. (2d) 203, 1986 CarswellOnt 435, 56 O.R. (2d) 240, 32 D.L.R. (4th) 292 at 304, 27 C.R.R. 52 (Ont. H.C.) — considered Corbiere v. Canada (Minister of Indian & Northern Affairs) (1999), 163 F.T.R. 284 (note), 1999 CarswellNat 663, 1999 CarswellNat 664, (sub nom. Canada (Minister of Indian & Northern Affairs) v. Corbiere) 61 C.R.R. (2d) 189, (sub nom. Corbière v. Canada (Minister of Indian & Northern Affairs)) 173 D.L.R. (4th) 1, 239 N.R. 1, [1999] 3 C.N.L.R. 19, [1999] 2 S.C.R. 203, [1999] S.C.J. No. 24 (S.C.C.) — considered Egan v. Canada (1995), 95 C.L.L.C. 210-025, 12 R.F.L. (4th) 201, 1995 C.E.B. & P.G.R. 8216, 124 D.L.R. (4th) 609, 182 N.R. 161, 29 C.R.R. (2d) 79, [1995] 2 S.C.R. 513, 96 F.T.R. 80 (note), 1995 CarswellNat 6, 1995 Car- swellNat 703 (S.C.C.) — followed Fraess v. Alberta (2005), 2005 ABQB 889, 2005 CarswellAlta 1783, 56 Alta. L.R. (4th) 201, (sub nom. Fraess v. Alberta (Minister of Justice)) 390 A.R. 280, 278 D.L.R. (4th) 187, (sub nom. Fraess v. Alberta (Minister of Justice & Attorney General)) 135 C.R.R. (2d) 158, 23 R.F.L. (6th) 101, [2005] A.J. No. 1665 (Alta. Q.B.) — considered Frégeau c. R. (2004), 2004 CCI 293, 2004 CarswellNat 1301, (sub nom. Frégeau v. R.) 2006 D.T.C. 2243, 2004 D.T.C. 2726, 2004 TCC 293, 2004 CarswellNat 6160, [2004] T.C.J. No. 232, [2004] A.C.I. No. 232 (T.C.C. [Informal Procedure]) — considered H. (D.W.) v. R. (D.J.) (2007), 71 Alta. L.R. (4th) 225, 404 W.A.C. 34, 412 A.R. 34, 2007 ABCA 57, 2007 CarswellAlta 201, [2007] 5 W.W.R. 235, 280 D.L.R. (4th) 90, [2007] A.J. No. 187 (Alta. C.A.) — considered H. (D.W.) v. R. (D.J.) (2009), [2010] 4 W.W.R. 164, 2009 ABQB 438, 2009 CarswellAlta 1104, 70 R.F.L. (6th) 341, 13 Alta. L.R. (5th) 113, 478 A.R. 109 (Alta. Q.B.) — followed Hislop v. Canada (Attorney General) (2007), 222 O.A.C. 324, 37 R.F.L. (6th) 1, 84 O.R. (3d) 800 (note), 278 D.L.R. (4th) 385, (sub nom. Canada (Attorney General) v. Hislop) [2007] 1 S.C.R. 429, 2007 SCC 10, 2007 CarswellOnt 1049, 2007 CarswellOnt 1050, 358 N.R. 197, (sub nom. R. v. Hislop) 153 C.R.R. (2d) 173, [2007] S.C.J. No. 10 (S.C.C.) — considered Hutterian Brethren of Wilson Colony v. Alberta (2009), (sub nom. Alberta v. Hutterian Brethren of Wilson Colony) 194 C.R.R. (2d) 12, 2009 Carswell- Alta 1094, 2009 CarswellAlta 1095, 2009 SCC 37, 310 D.L.R. (4th) 193, (sub nom. Alberta v. Hutterian Brethren of Wilson County) [2009] 2 S.C.R. 567, 9 Alta. L.R. (5th) 1, 81 M.V.R. (5th) 1, 390 N.R. 202, [2009] 9 W.W.R. 189, 462 W.A.C. 1, 460 A.R. 1, [2009] S.C.J. No. 37 (S.C.C.) — followed H. (D.W.) v. R. (D.J.) 309

Law v. Canada (Minister of Employment & Immigration) (1999), 170 D.L.R. (4th) 1, 1999 CarswellNat 359, 1999 CarswellNat 360, (sub nom. Law v. Canada (Minister of Human Resources Development)) 60 C.R.R. (2d) 1, 236 N.R. 1, [1999] 1 S.C.R. 497, 43 C.C.E.L. (2d) 49, (sub nom. Law v. Minister of Human Resources Development) 1999 C.E.B. & P.G.R. 8350 (headnote only), [1999] S.C.J. No. 12 (S.C.C.) — considered M v. H (1999), (sub nom. M. v. H.) 171 D.L.R. (4th) 577, (sub nom. M. v. H.) 121 O.A.C. 1, (sub nom. M. v. H.) 238 N.R. 179, 1999 CarswellOnt 1348, 1999 CarswellOnt 1349, (sub nom. M. v. H.) 43 O.R. (3d) 254 (headnote only), 46 R.F.L. (4th) 32, (sub nom. M. v. H.) 62 C.R.R. (2d) 1, 7 B.H.R.C. 489, (sub nom. M. v. H.) [1999] 2 S.C.R. 3, (sub nom. Attorney General for Ontario v. M. & H.) 1999 C.E.B. & P.G.R. 8354 (headnote only), [1999] S.C.J. No. 23 (S.C.C.) — referred to Mackin v. New Brunswick (Minister of Justice) (2002), 31 C.C.P.B. 55, (sub nom. Rice, P.C.J. v. New Brunswick) 245 N.B.R. (2d) 299, (sub nom. Rice, P.C.J. v. New Brunswick) 636 A.P.R. 299, 17 C.P.C. (5th) 1, [2002] 1 S.C.R. 405, 2002 CarswellNB 59, 2002 CarswellNB 60, 2002 SCC 13, (sub nom. Mackin v. New Brunswick (Minister of Finance)) 91 C.R.R. (2d) 1, (sub nom. Mackin v. New Brunswick (Minister of Finance)) 209 D.L.R. (4th) 564, (sub nom. Rice, P.C.J. v. New Brunswick) 282 N.R. 201, [2002] S.C.J. No. 13, REJB 2002-27928 (S.C.C.) — followed Pilette c. R. (2009), (sub nom. Pilette v. Camada) 319 D.L.R. (4th) 369, 2009 CAF 367, 2009 CarswellNat 4225, (sub nom. Pilette v. R.) 2010 D.T.C. 5075 (Eng.), (sub nom. Pilette v. Minister of National Revenue) 402 N.R. 183, 2009 FCA 367, 2009 CarswellNat 5697, (sub nom. Pilette v. R.) 2010 D.T.C. 5011 (Fr.) (F.C.A.) — considered R. v. Big M Drug Mart Ltd. (1985), [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321, 58 N.R. 81, [1985] 3 W.W.R. 481, 37 Alta. L.R. (2d) 97, 60 A.R. 161, 18 C.C.C. (3d) 385, 85 C.L.L.C. 14,023, 13 C.R.R. 64, 1985 CarswellAlta 316, 1985 CarswellAlta 609, [1985] S.C.J. No. 17 (S.C.C.) — considered R. v. Kapp (2008), 2008 SCC 41, [2008] 8 W.W.R. 1, 79 B.C.L.R. (4th) 201, 37 C.E.L.R. (3d) 1, 256 B.C.A.C. 75, 431 W.A.C. 75, 175 C.R.R. (2d) 185, 376 N.R. 1, 58 C.R. (6th) 1, 232 C.C.C. (3d) 349, [2008] 3 C.N.L.R. 346, 294 D.L.R. (4th) 1, [2008] 2 S.C.R. 483, 2008 CarswellBC 1312, 2008 Car- swellBC 1313, [2008] S.C.J. No. 42 (S.C.C.) — followed R. v. Oakes (1986), [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, 65 N.R. 87, 14 O.A.C. 335, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 19 C.R.R. 308, 53 O.R. (2d) 719, 1986 CarswellOnt 95, 1986 CarswellOnt 1001, [1986] S.C.J. No. 7, EYB 1986-67556 (S.C.C.) — followed RJR-Macdonald Inc. c. Canada (Procureur g´en´eral) (1995), (sub nom. RJR- MacDonald Inc. v. Canada (Attorney General)) 127 D.L.R. (4th) 1, (sub nom. RJR-MacDonald Inc. v. Canada (Attorney General)) [1995] 3 S.C.R. 199, 1995 CarswellQue 119, (sub nom. RJR-MacDonald Inc. v. Canada 310 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

(Attorney General)) 100 C.C.C. (3d) 449, (sub nom. RJR-MacDonald Inc. v. Canada (Attorney General)) 62 C.P.R. (3d) 417, (sub nom. RJR-MacDonald Inc. v. Canada (Attorney General)) 31 C.R.R. (2d) 189, (sub nom. RJR- MacDonald Inc. c. Canada (Procureur g´en´eral)) 187 N.R. 1, 1995 Car- swellQue 119F, EYB 1995-67815, [1995] S.C.J. No. 68 (S.C.C.) — followed Rutherford v. Ontario (Deputy Registrar General) (2006), 2006 CarswellOnt 3463, 81 O.R. (3d) 81, 141 C.R.R. (2d) 292, 270 D.L.R. (4th) 90, 30 R.F.L. (6th) 25, (sub nom. M.D.R. v. Ontario (Deputy Registrar General)) [2006] O.J. No. 2268 (Ont. S.C.J.) — considered Schachter v. Canada (1992), [1992] 2 S.C.R. 679, 92 C.L.L.C. 14,036, 10 C.R.R. (2d) 1, 139 N.R. 1, 93 D.L.R. (4th) 1, 1992 CarswellNat 658, 1992 CarswellNat 1006, 53 F.T.R. 240 (note), [1992] S.C.J. No. 68, EYB 1992- 67220 (S.C.C.) — considered Susan Doe v. Canada (Attorney General) (2007), 2007 CarswellOnt 77, (sub nom. Doe v. Canada (Attorney General)) 150 C.R.R. (2d) 124, 84 O.R. (3d) 81, 219 O.A.C. 101, 2007 ONCA 11, 35 R.F.L. (6th) 15, 276 D.L.R. (4th) 127 (Ont. C.A.) — referred to Thibaudeau v. R. (1994), (sub nom. Thibaudeau v. Minister of National Reve- nue) 167 N.R. 161, (sub nom. Thibaudeau v. Canada) 21 C.R.R. (2d) 35, 1994 CarswellNat 1460, 94 D.T.C. 6230, (sub nom. Thibaudeau v. Canada) [1994] 2 C.T.C. 4, 1994 CarswellNat 969, 3 R.F.L. (4th) 153, (sub nom. Thibaudeau v. Canada) 114 D.L.R. (4th) 261, (sub nom. Thibaudeau v. Can- ada) [1994] 2 F.C. 189 (Fed. C.A.) — considered Thibaudeau v. R. (1995), (sub nom. R. v. Thibaudeau) 95 D.T.C. 5273, 1995 CarswellNat 704, 1995 CarswellNat 281, 12 R.F.L. (4th) 1, (sub nom. Thibaudeau v. Canada) [1995] 1 C.T.C. 382, (sub nom. Thibaudeau v. Can- ada) 124 D.L.R. (4th) 449, (sub nom. Thibaudeau v. Canada) [1995] 2 S.C.R. 627, (sub nom. Thibaudeau v. Minister of National Revenue) 182 N.R. 1, (sub nom. Thibaudeau v. Canada) 29 C.R.R. (2d) 1, [1995] S.C.J. No. 42 (S.C.C.) — considered Thomson Newspapers Ltd. v. Canada (Director of Investigation & Research) (1990), 72 O.R. (2d) 415 (note), 1990 CarswellOnt 991, 76 C.R. (3d) 129, [1990] 1 S.C.R. 425, 67 D.L.R. (4th) 161, 106 N.R. 161, 39 O.A.C. 161, 54 C.C.C. (3d) 417, 29 C.P.R. (3d) 97, 47 C.R.R. 1, 1990 CarswellOnt 92, EYB 1990-67526, [1990] S.C.J. No. 23 (S.C.C.) — considered Trociuk v. British Columbia (Attorney General) (2003), [2003] 7 W.W.R. 391, (sub nom. D.W.T. v. British Columbia (Attorney General)) 304 N.R. 201, 107 C.R.R. (2d) 277, 2003 SCC 34, 2003 CarswellBC 1350, 2003 Car- swellBC 1351, (sub nom. D.W.T. v. British Columbia (Attorney General)) 183 B.C.A.C. 1, (sub nom. D.W.T. v. British Columbia (Attorney General)) 301 W.A.C. 1, 36 R.F.L. (5th) 429, 226 D.L.R. (4th) 1, 14 B.C.L.R. (4th) 12, H. (D.W.) v. R. (D.J.) 311

[2003] 1 S.C.R. 835, REJB 2003-42847, [2003] S.C.J. No. 32 (S.C.C.) — considered Vriend v. Alberta (1998), 50 C.R.R. (2d) 1, 224 N.R. 1, 212 A.R. 237, 168 W.A.C. 237, 31 C.H.R.R. D/1, [1999] 5 W.W.R. 451, 67 Alta. L.R. (3d) 1, [1998] 1 S.C.R. 493, 98 C.L.L.C. 230-021, 4 B.H.R.C. 140, 1998 Carswell- Alta 210, 1998 CarswellAlta 211, 156 D.L.R. (4th) 385, [1998] S.C.J. No. 29 (S.C.C.) — referred to Ward v. Vancouver (City) (2010), 75 C.C.L.T. (3d) 1, 491 W.A.C. 222, (sub nom. Vancouver (City) v. Ward) 213 C.R.R. (2d) 166, (sub nom. Vancouver (City) v. Ward) [2010] 2 S.C.R. 28, 290 B.C.A.C. 222, 404 N.R. 1, 76 C.R. (6th) 207, 2010 SCC 27, 7 B.C.L.R. (5th) 203, 321 D.L.R. (4th) 1, [2010] 9 W.W.R. 195, 2010 CarswellBC 1947, 2010 CarswellBC 1948, [2010] S.C.J. No. 27 (S.C.C.) — referred to Withler v. Canada (Attorney General) (2011), [2011] 4 W.W.R. 383, 87 C.C.P.B. 161, 300 B.C.A.C. 120, 509 W.A.C. 120, [2011] 1 S.C.R. 396, 2011 SCC 12, 15 B.C.L.R. (5th) 1, 329 D.L.R. (4th) 193, D.T.E. 2011T-181, 412 N.R. 149, 2011 CarswellBC 379, 2011 CarswellBC 380 (S.C.C.) — followed Statutes considered: Alberta Human Rights Act, R.S.A. 2000, c. A-25.5 Generally — referred to s. 4 — referred to s. 22(1)(a) — referred to s. 37 — referred to s. 44(1)(f) — referred to Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 1 — considered s. 15 — considered s. 15(1) — considered s. 24 — considered s. 24(1) — considered s. 52 — considered s. 52(1) — considered Child, Youth and Family Enhancement Act, R.S.A. 2000, c. C-12 Generally — referred to Children’s Law Reform Act, R.S.O. 1990, c. C.12 Generally — referred to Family Law Act, S.A. 2003, c. F-4.5 Generally — referred to s. 1(f) “father” — considered s. 1(f) “father” (i) — considered 312 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

s. 1(i) “mother” — considered s. 1(j) “parent” — considered s. 1(n) “relationship of interdependence” — considered s. 8 — considered s. 8(1)(f) — considered s. 8.1 [en. 2010, c. 16, s. 1(9)] — referred to s. 8.2 [en. 2010, c. 16, s. 1(9)] — referred to s. 8.2(6)(b) [en. 2010, c. 16, s. 1(9)] — referred to s. 8.2(8) [en. 2010, c. 16, s. 1(9)] — referred to s. 9 — considered s. 12 — considered s. 12(2)-12(5) — considered s. 13 — considered s. 13(1) — considered s. 13(2) — considered s. 13(2)(a) — considered s. 13(2)(b) — considered s. 20 — considered Family Law Statutes Amendment Act, S.A. 2010, c. 16 Generally — referred to Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) Generally — referred to Vital Statistics Act, R.S.A. 2000, c. V-4 Generally — referred to Rules considered: Alberta Rules of Court, Alta. Reg. 124/2010 R. 10.31(5) — considered Tariffs considered: Alberta Rules of Court, Alta. Reg. 124/2010 Sched. C — referred to

APPLICATION by gay male for declaration that his rights under s. 15 of Cana- dian Charter of Rights and Freedoms were infringed by Family Law Act and Vital Statistics Act.

No one for D.W.H. Lillian Riczu for Intervener H. (D.W.) v. R. (D.J.) S.M. Bensler J. 313

S.M. Bensler J.: Introduction 1 The Applicant, Mr. H., is challenging certain sections of the Family Law Act, S.A. 2003, c. F-4.5 (“FLA”) and the Vital Statistics Act, R.S.A. 2000, c. V-4 (“VSA”) on the basis that both pieces of legislation discriminate against him on the grounds of gender and sexual orientation contrary to s. 15 of the Canadian Charter of Rights and Freedoms. The Ap- plicant filed a Notice of Motion seeking an Order declaring that ss. 8, 12 and 13 of the FLA violate his right to equality pursuant to s. 15 of the Charter and a reading in of any language necessary to recognize the parental rights of “intended parents” in a gay male relationship. Mr. H. further seeks an Order declaring that the VSA violates his s. 15 rights by failing to provide for recognition of a non-biological gay male “intended” parent on a birth certificate and seeks an amendment to the registration process under this Act. Mr. H.’s Notice of Motion was filed on October 28, 2010. 2 In addition to the above, Mr. H. is also seeking damages against the Province as well as an award of costs on a retroactive basis.

History 3 The Applicant Mr. H. and the Respondent Mr. R. were in a same-sex interdependent adult relationship when they determined that they wanted a child. They met with a lesbian couple, the Respondent Ms. D. and her partner Ms. C., and worked out an arrangement whereby Ms. D. would be impregnated using Mr. R.’s sperm in an assisted conception, and would give the child to Messrs. H. and R. Following this birth, Ms. D. would then be impregnated for a second time, again using Mr. R.’s sperm in an assisted conception, and the second child would be raised by Ms. D. and her partner. 4 Baby S. was born in May of 2003 following a successful assisted conception using Mr. R.’s sperm. Mr. H. and Mr. R. were both present at her birth. Baby S. lived with and was cared for by Mr. H. and Mr. R. She grew up referring to these two men as “Papa” and “Daddy”, respectively. Both Ms. D. and Ms. C. enjoyed regular access to the child S. In October of 2005, Ms. D. gave birth to the child N., again using Mr. R.’s sperm via assisted conception. Baby N. lived with and was raised by Ms. D. and Ms. C., with Mr. H. and Mr. R. (more so Mr. R.) exercising regular access. Biologically, the child S. and the child N. are sister and brother. 314 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

5 A number of factual findings as to the nature of the relationship between Mr. H. and Mr. R., as well as the role played by Ms. D., are set out by Eidsvik, J. at 2009 ABQB 438, 478 A.R. 109 (Alta. Q.B.) [H. (D.W.) v. R. (D.J.)]. This judgment has not been appealed and I adopt the factual findings as set out therein. Specifically, I accept that Mr. H. and Mr. R. were living together in a loving and committed relationship. They each wore similar wedding bands, although they were never legally married. Both individuals were extremely excited about the birth of the child S. and lovingly welcomed her into their home. Both contributed to the care and upbringing of the child S. as dual primary caregivers. Mr. H. indicated that he was initially interested in adopting the child S. but did not pursue this option as he was unsure of the parental rights of Ms. D. and did not want to “rock the boat”. Ms. D. lived with the couple for the first 1 2 /2 months following the child S.’s birth at which time all three parties participated in the baby’s care. After Ms. D. moved back home, primary responsibility for the child S.’s care moved to Messrs. H. and R. By all accounts, Mr. H. was a loving and involved de facto parent to Baby S. 6 Messrs. H. and R. separated in June of 2006 when the child S. was approximately three years of age. Mr. H. moved out and the child S. continued to reside with Mr. R. Ms. D. had not relinquished her parental or guardianship status and she and Mr. R. subsequently entered into a parenting agreement which named each of them as guardians of both the child S. and the child N., with Mr. R. having primary responsibility of the child S. and Ms. D. having primary responsibility of the child N. Following the separation, relations between Mr. H. and Mr. R. and Mr. H. and Ms. D. soured. The Respondents claimed to be the sole legal parents of the child S. and initially denied any meaningful access to Mr. H., claiming that it was not in the child S.’s best interests. 7 In October of 2006, Mr. H. brought an application for a contact order pursuant to s. 35 of the FLA granting him reasonable access on the basis that he acted as a parent to the child S. for the first three years following her birth. The chambers judge refused to grant the order and Mr. H. appealed to the Court of Appeal. The Court held that the trial judge erred by failing to determine Mr. H.’s legal status with respect to the child S., in loco parentis, before considering whether a contact order ought to be made: 2007 ABCA 57, 412 A.R. 34 (Alta. C.A.) [H. (D.W.) v. R. (D.J.)]. The Court of Appeal found that “the uncontested evidence supports the conclusion that [Mr. H] stood in the place of a parent to the child”: para. 18, and that Mr. H. had been “directly involved in her parenting since H. (D.W.) v. R. (D.J.) S.M. Bensler J. 315

birth”: para. 19. Accordingly, the Court awarded reasonable access pending trial or further court order. 8 Of note to this application are the Court’s comments at para. 7 that: The FLA is recent legislation. The definitions of father, mother, parent and guardian and whether it is possible to have more than one father or mother have yet to be judicially considered in this province and arguably arise on these facts. However, for the purpose of this interim application, we need not determine whether having more than one father and mother is possible under the FLA, or whether the respondents meet the definitions of parent or guardian under the FLA and what might flow as a result. 9 Subsequent to the Court of Appeal’s order, Mr. H. began exercising his access rights. The relationship between the parties further deterio- rated and shortly thereafter a parenting assessment was performed. An order was granted in November of 2007 discontinuing contact between Mr. H. and the child S. Mr. H. submits that following this period, his relationship with the child S. has become virtually non-existent. 10 Mr. H. sought a subsequent contact order giving him reasonable and generous access to the child S. under s. 35 of the FLA. The trial took place in the spring of 2009, when the child S. was six years old: see 2009 ABQB 438 (Alta. Q.B.) , supra. Mr. H. brought the application for access on the basis that he was a person standing in the place of a parent, or that he was a person who could be considered a parent in law. Eidsvik, J. found that based upon the Court of Appeal’s finding that Mr. H. stood in the place of a parent, he was able to bring the application without leave, pursuant to s. 35 of the FLA. She further noted that had Mr. H. been considered a legal parent, he would not have to satisfy the conditions enumerated under s. 35. Rather, there is a presumption that it is in the child’s best interests to maintain maximum contact with his or her parents, absent evidence to the contrary. On the facts of the case before her, Eidsvik, J. applied the common law test for access as if both Messrs. H. and R. were legal fathers to the child S. On this basis she found that it was in the best interests of the child S. to have access visits with Mr. H. and ordered accordingly. 11 Following the trial, Eidsvik, J. informed the parties that under the wording of the FLA, Mr. R. was not the legal father to the child S. In- deed, by operation of the Act, the child S.’s sole legal parent was Ms. D., who did not have primary custody of the child S. Following receipt of these reasons, Mr. R. applied to become - and was appointed - guardian 316 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

of the child S. The order was granted in November of 2010. Mr. H. is also seeking an order for declaration of guardianship in relation to the child S. This application is opposed by Mr. R. and Ms. D. 12 As a part of his application Mr. H. is challenging the validity of both the FLA and the VSA, as set out above. It is this constitutional challenge that is before me today. Following written and oral submissions by the parties it became clear that there has been some misapprehension on the behalf of the Applicant (who is self-represented) as to whether he was precluded from arguing in favour of a three-parent family model, based upon correspondence that he had received. In order to fully and finally resolve this issue, I requested that both the Applicant and the Intervener provide this Court with submissions as to whether the FLA discriminates against the Applicant’s Charter rights utilizing a multiple-parent model. 13 Submissions were received by both parties in this regard. The submissions received by the Applicant revealed that he continued to operate under the misapprehension that he was precluded from arguing in favour of an inclusive parenting model (although he clearly expressed his preference for a two parent model to the exclusion of the birth mother). This is best reflected in para. 6 of his supplementary submissions wherein he indicates that he has been told by lawyers and other government officials that the multiple parent model was not an arguable option. With respect to the Applicant, it is the courts, and not lawyers or government employees, who ultimately determine the interpretation of legislation. While the supplementary submissions of the Intervener confirmed that the Appli- cant was not arguing for a multiple parent model, it went on to address the issues surrounding the multiple parent model. 14 In order to fully appreciate Mr. H.’s argument, I have reproduced the relevant sections of the legislation at issue.

Legislation 15 The Applicant filed his originating notice of motion in this matter on October 28, 2010. He claims that his Charter rights were infringed by the FLA as worded at that time. This hearing took place on April 20, 2011. The Family Law Statutes Amendment Act, S.A. 2010, c. 16 received Royal Assent on December 2, 2010. Its relevant sections were proclaimed in force on August 1, 2011. This Act amends the presumptions of parentage originally created in the FLA. The sections of the Act that are pertinent to this Application have been appended to this decision (“Amended Act”). H. (D.W.) v. R. (D.J.) S.M. Bensler J. 317

16 While the Applicant made reference to the changes proposed in the Amended Act during argument, this Act had not yet been proclaimed in force and thus any Charter arguments concerning the amended legislation were not before this Court. While the recent proclamation of the Amended Act has, in part, rendered certain of my findings moot, the Ap- plicant’s claim that his Charter rights were infringed by the previous version of the legislation will be adjudicated on its merits. It is the previous version of the FLA which established parentage over Baby S. and it is this legislation which the Applicant claims negatively effected his relationship with the child and under which he seeks damages. 17 The relevant sections of the FLA are as follows: Definitions 1 (f) “father” means (i) unless subclause (ii) or (iii) applies, the biological father of a child, including a male person described in section 13(2)(a), (ii) in the case of an adopted child, a male person who adopts the child, or (iii) a male person described in section 13(2)(b); 1 (i) “mother” means (i) unless subclause (ii) or (iii) applies, the person who gives birth to a child, (ii) in the case of an adopted child, a female person who adopts the child, or (iii) a female person described in section 12(6); 1 (j) “parent” means the father or mother of a child; 1 (n) “relationship of interdependence” means a relationship of interdependence as defined in the Adult Interdependent Relationships Act; Presumption of parentage 8(1) For all purposes of the law of Alberta, unless the contrary is proven on a balance of probabilities, a male person is presumed to be the biological father of a child in any of the following circumstances: (a) the male person was the spouse of the mother of the child at the time of the birth of the child; (b) the male person was the spouse of the mother of the child and the marriage was terminated by (i) a decree of nullity of marriage granted less than 300 days before the birth of the child, or 318 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

(ii) a judgment of divorce granted less than 300 days before the birth of the child; (c) the male person became the spouse of the mother of the child after the birth of the child and has acknowledged that he is the father of the child; (d) the male person cohabited with the mother of the child for 12 consecutive months during which time the child was born and has acknowledged that he is the father of the child; (e) the male person cohabited with the mother of the child for at least 12 consecutive months and the period of cohabitation ended less than 300 days before the birth of the child; (f) the male person is registered as the father of the child at the joint request of himself and the mother of the child under the Vital Statistics Act or under similar legislation in a province or territory other than Alberta; (g) the male person has been found by a court of competent jurisdiction in Canada to be the father of the child for any purpose. (2) Where circumstances exist that give rise to a presumption under subsection (1) that more than one male person might be the father of a child, no presumption as to parentage may be made. Declaration of parentage 9(1) The following persons may apply to the court for a declaration that a female person named in the application is the mother of a child or a male person named in the application is the father of a child: (a) a person claiming to be the mother or father of the child; (b) the child; (c) a parent of the child, if the child is under the age of 18 years; (d) a guardian of the child; (e) a person who has the care and control of the child. (2) The court shall grant a declaration of parentage on being satisfied on a balance of probabilities that the alleged mother or alleged father is the mother or father of the child. H. (D.W.) v. R. (D.J.) S.M. Bensler J. 319

(3) In making a declaration of parentage, the court shall have regard to any subsisting presumption of parentage under section 8. (4) The court has jurisdiction under this section if the child or an alleged parent against whom an application is brought resides in Alberta. (5) A declaration under this section applies for all purposes of the law of Alberta. Surrogacy 12(1) In this section, (a) “genetic donor” means a female person who provides genetic material that is fertilized and implanted in the uterus of a gestational carrier; (b) “gestational carrier” means a female person in whose uterus the genetic material of a genetic donor is implanted. (2) A genetic donor may apply to the court for an order declaring the genetic donor to be the mother of a child who is born in Alberta to a gestational carrier. (3) An application under subsection (2) may not be made more than 14 days after the date of the child’s birth or such longer period as the court allows. (4) The gestational carrier and any other guardian of the person claimed to be the child must, in accordance with the regulations, be served with notice of an application under subsection (2). (5) If (a) the court is satisfied that the child resulted from the fertilization of the genetic donor’s genetic material, and (b) the gestational carrier consents, in the form provided for by the regulations, to the application, the court shall make an order declaring the genetic donor to be the sole mother of the child. (6) A genetic donor who is declared to be the sole mother of the child under subsection (5) is deemed to be the mother at and from the time of the birth of the child. 320 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

(7) Any agreement under which a gestational carrier agrees to give birth to a child for the purpose of relinquishing that child to a genetic donor (a) is not enforceable, and (b) may not be used as evidence of consent of the gestational carrier under subsection (5)(b). Assisted conception 13(1) In this section, “assisted conception” means the fertilization by a male person’s sperm of a female person’s egg by means other than sexual intercourse and includes fertilization of a female person’s egg outside of her uterus and subsequent implantation of the fertilized egg into her uterus. (2) A male person is the father of the resulting child if at the time of an assisted conception he was the spouse of or in a relationship of interdependence of some permanence with the female person and (a) his sperm was used in the assisted conception, even if it was mixed with the sperm of another male person, or (b) his sperm was not used in the assisted conception, but he consented in advance of the conception to being a parent of the resulting child. (3) Subject to the exceptions in the regulations, a male person whose sperm is used in an assisted conception involving an egg of a female person who is neither his spouse nor a person with whom he is in a relationship of interdependence of some permanence is not the father of the resulting child and ac- quires no parental or guardianship rights or responsibilities of any kind as a result of the use of his sperm. 18 The Applicant also alleges that the Vital Statistics Act discriminates against him on the basis of gender and sexual orientation. He did not specify any particular section as being offensive, other than to argue that the VSA demonstrated a breach of individual rights due to a lack of legislative services and that the Act should otherwise acknowledge him as a parent to the child S. As I understand the Applicant’s argument, he is claiming discrimination based upon the fact that the VSA requires registration to reflect the parentage of Ms. D. as birth mother, and not an individual such as Mr. H., who stands as an intended parent. After hearing oral argument, it became clear that the majority of the discrimination alleged by Mr. H. stemmed from operation of the FLA. I note that s. 8(1)(f) H. (D.W.) v. R. (D.J.) S.M. Bensler J. 321

of the FLA presumes parentage of the male person who is registered as the father of a child under the VSA.

Issues 19 The primary issue before this Court is whether the impugned legislation offended the Applicant’s s. 15 Charter rights by failing to grant status as a parent or guardian by operation of law based upon a prohibited enumerated or analogous ground. Section 15(1) of the Charter states that: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 20 Laws which offend against this principle are considered unconstitutional, unless otherwise saved under a s. 1 analysis. If the legislation in question offends the Applicant’s s. 15 Charter rights and cannot be saved under s. 1, I must determine an appropriate remedy.

Analysis 21 At the outset of my decision, and prior to addressing the Charter issues, I wish to briefly discuss one of the grounds of relief requested by the Applicant; that is, his request to reopen the property and asset settlement previously reached between himself and Mr. R. The Applicant argues that this prior settlement was agreed to under duress and settled fraudulently. He seeks to have this settlement re-opened in order to introduce new evidence of duress. The Applicant further argues that the settlement was procured on the grounds of discriminatory legislation. The application before this Court is meant to deal specifically with whether the legislation in issue discriminates against the Applicant’s ability to be recognized as a parent. The Applicant did not argue that either Act discriminated against his ability to claim for property division or support. If the Applicant wishes to have his property and spousal support settlement reviewed he must proceed through the proper channels. 22 Having briefly dealt with and dismissed this part of the Applicant’s claim, I turn now to the crux of this application, namely whether the impugned provisions of the FLA and the VSA offend against the Applicant’s s. 15 Charter rights. Although the Applicant’s Notice of Motion alleged discrimination based upon gender and sexual orientation, during both 322 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

written and oral argument he further alleged that he had been discriminated against on the basis of family status. As a preliminary point, I shall address his claim on this ground. 23 At para. 11 of the Applicant’s brief, he asserts that the above-men- tioned sections of the FLA and the VSA violate s. 4 of the Alberta Human Rights Act. The Applicant filed a human rights complaint on August 13, 2009 pursuant to the [now] Alberta Human Rights Act, R.S.A. 2000, c. A-25.5 (“AHRA”). As I understand the Applicant’s human rights claim, he has asserted that the FLA and the VSA demonstrate a lack of legislative services which in turn have breached his rights by failing to acknowledge his family status, gender and sexual orientation. Mr. H.’s human rights claim was investigated and was ultimately dismissed by the Director on February 9, 2011 pursuant to s. 22(1)(a) of the AHRA on the grounds that the Applicant had failed to prove discrimination in the provision of goods or services available to the public. In putting forth his human rights claim, the Applicant argued that he had been discriminated against, in part, on the basis of family status. The AHRA expressly protects against discrimination on the grounds of “family status.” Family status is defined at s. 44(1)(f) as “the status of being related to another person by blood, marriage or adoption.” 24 On March 5, 2011 the Applicant wrote to the Chief Commissioner requesting a review of the Director’s decision to dismiss his complaint and suggesting that the matter be referred to a human rights panel. This appeal was commenced within 30 days of the dismissal, as required by the AHRA. If the Applicant is not satisfied by the decision of the Chief Commissioner, he is able to apply for judicial review of that decision. To my knowledge, the appeal before the Chief Commissioner has not been determined, nor has the Applicant filed an application for the matter to be reviewed by this Court pursuant to s. 37 of the AHRA. As such, this Court lacks the jurisdiction to make any determination as to whether the AHRA has discriminated against the Applicant on the basis of family status, gender or sexual orientation. 25 While “family status” is an enumerated ground under the AHRA, it is not an enumerated ground under the Charter. Gender, of course, is an enumerated ground and sexual orientation has since been accepted as an analogous ground: Egan v. Canada, [1995] 2 S.C.R. 513 (S.C.C.); Vriend v. Alberta, [1998] 1 S.C.R. 493 (S.C.C.); M v. H, [1999] 2 S.C.R. 3 (S.C.C.). According to G. Beaudoin and E. Mendes, 4th ed., Canadian Charter of Rights and Freedoms (Markham, Ont., Butterworths, 2005) at H. (D.W.) v. R. (D.J.) S.M. Bensler J. 323

p. 996, “family status” has not yet been recognized by the Supreme Court of Canada as an analogous ground. This Court has been unable to locate any Supreme Court authority confirming family status as an analogous ground. However, I do refer to Corbiere v. Canada (Minister of Indian & Northern Affairs), [1999] 2 S.C.R. 203 (S.C.C.), where the majority confirmed the test for establishing an analogous ground, at para. 13: What then are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s. 15 — race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion. Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics, which too often have served as illegitimate and demeaning proxies for merit-based decision making. 26 While there has not been a definitive Supreme Court ruling on this issue, I note that a number of lower courts have accepted distinction on the grounds of “family status” as an analogous ground. In Pilette c. R., 2009 FCA 367, 319 D.L.R. (4th) 369 (F.C.A.), the applicant claimed that a certain section of the Income Tax Act infringed upon her s. 15 Charter rights based on both age and family status. The respondent argued that a distinction based upon family status was not an analogous ground. While both the trial judge and the appellate Court seemingly accepted family status as a ground, they held that on the facts the applicant had failed to prove that single family parental incomes constituted a homogeneous economic situation involving a vulnerable group. In Fr´egeau c. R. (2004), 2004 TCC 293 (T.C.C. [Informal Procedure]), the applicant claimed that the disallowance of a tax credit was discriminatory based on family sta- 324 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

tus and violated his s. 15 Charter rights. The Court found that notwithstanding the fact that the applicant was treated differently based upon a personal characteristic - family status - the differential treatment under the Income Tax Act was not discriminatory in purpose or effect. 27 In Thibaudeau v. R., [1994] 2 F.C. 189 (Fed. C.A.), the majority of Federal Court of Appeal held that the Income Tax Act discriminated against the applicant, a separated custodial parent, on the grounds of “family status”. Of note, the majority opined at p. 211 that: The fact that family status or some similar expression figures as a prohibited ground of discrimination in most human rights statutes also serves to confirm its analogous nature to the grounds enumerated in the Charter. Finally, the group to which the applicant belongs and which claims discrimination on the ground of family status, separated custodial parents, can readily be seen as a discrete and insular minority which has historically suffered prejudice and has need of protection. 28 On appeal, the majority of the Supreme Court allowed the appeal, deciding that the tax regime was not discriminatory, without focusing on the nature of marital or family status as such: [1995] 2 S.C.R. 627 (S.C.C.) [Thibaudeau v. R.]. 29 More recently, the discrimination claim in Fraess v. Alberta, 2005 ABQB 889, 390 A.R. 280 (Alta. Q.B.) was decided on the basis of the applicant’s gender and sexual orientation, as opposed to expressly establishing family status as a ground. 30 I do not mean to state that there can never be overlapping grounds of discrimination; surely the grounds of “gender”, “sexual orientation” and “family status” cannot be seen as being mutually exclusive. However, during the application before me, Mr. H. failed to demonstrate how he was discriminated against on the grounds of family status in a manner that differed from either sexual orientation or gender. In his Notice of Motion he claimed discrimination on two distinct grounds; sexual orientation and gender. These are the grounds that the Intervener, who filed their written submissions first, addressed in argument. As such, and given my findings that the Applicant has proven discrimination on the grounds as pled, I leave for another day the issue of whether family status is a properly recognized analogous ground. 31 I turn now to the question of the whether the legislation in issue offended the Applicant’s Charter rights. H. (D.W.) v. R. (D.J.) S.M. Bensler J. 325

32 The facts are clear that the child S. was conceived via assisted human reproduction whereby Mr. R.’s sperm was inserted into Ms. D. The FLA defines “assisted conception” as the “...fertilization by a male person’s sperm of a female person’s egg by means other than sexual intercourse...”. 33 I accept the earlier findings of this Court that both during the planning for conception and after the birth of the child S., there was an understanding that Mr. R. and Mr. H. would have primary parenting responsibilities over the child S. and that Ms. D. would carry the baby for them, in return for the opportunity to have and raise baby N. using a subsequent assisted conception. During the trial before Eidsvik, J., it became apparent that the parties may have been operating under different assumptions. Mr. H. believed that following the birth of the child S., the child would be raised by himself and Mr. R., and that he would be one of two fathers with all of the rights and responsibilities that would come along with that role. Ms. D. testified that although she understood that Messrs. H. and R. would be the primary caregivers, she expected to be involved to some degree in the child S.’s life and did not expect to give up any of her parental rights. Eidsvik, J. found that Mr. R. understood that Mr. H.’s role was going to be one of a co-parent (father). 34 Mr. H. argues that because he was in the equivalent of a spousal relationship with Mr. R. prior to planning the conception and then following birth (up until separation) and that because throughout this process he fully intended to act as a father to the child S., he should be recognized as a parent by operation of law notwithstanding the fact that his genetic material was not used in the conception process. For the purposes of this judgment, I use the term “spouse” or “spousal” as indicating a couple that is married, living common law, or in relationship of interdependence. 35 The FLA operates to regulate parentage of children born outside of the traditional method (being conception through sexual intercourse). Advances in reproductive technology have made it possible for couples - and individuals - who are otherwise unable to conceive a child to do so. However, the very nature of assisted conception can lead to difficulties with the legalities of determining “who is a parent”. While the FLA has attempted to define parenthood through assisted conception, it is clear that the Act was modelled upon a traditional family structure (i.e. a heterosexual couple who is unable to conceive a child through sexual inter- 326 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

course). However, this fact alone does not ground a claim for discrimination under s. 15 of the Charter. 36 Both parties agree that the current test for discrimination has been recently restated by our Supreme Court in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 (S.C.C.)and Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 (S.C.C.). These cases confirm a two- step analysis: the first step is determining whether the law, on its face or in its apparent effect, creates a distinction on an enumerated or analogous ground. The second step involves an examination of whether this distinction creates a disadvantage by perpetuating prejudice or stereotyping: Kapp, para. 17; Withler, para. 30. The legal burden is on the claimant to establish a violation of his or her rights on a balance of probabilities.

Were the Applicant’s s. 15 rights infringed? 37 The first step is determining whether the impugned law creates a distinction based upon one of the grounds protected under s. 15 of the Char- ter. That is, is the claimant being treated differently on the basis of one (or more) of the enumerated or analogous grounds. As the Court in Withler held, it is unnecessary to pinpoint a particular mirror group that precisely corresponds to the claimant group for the purposes of a comparison: para. 63. The focus of a s. 15 complaint must be on substantive, not formal equality: Withler, para. 2; Andrews v. Law Society (British Columbia), [1989] 1 S.C.R. 143 (S.C.C.), at p. 171; Kapp, para. 15. 38 While the Intervener suggests that it is no longer necessary to identify a particular comparator group, comparison continues to play a role throughout the analysis. As such, the Intervener suggests that, when compared to any couple where neither party can carry a child, the Appli- cant is treated no differently under the FLA. With respect, I do not think this is a proper comparison. Rather, the analysis should determine whether Mr. H. (in his relationship with Mr. R.) is treated differently from couples who require assistance in conceiving a child thus falling under ss. 12 or 13, and should not be limited to instances where neither couple is able to carry a child to term. 39 In this instance Mr. H. is claiming discrimination on the grounds of gender and sexual orientation. He is arguing that the FLA fails to account for the realities of parentage in a homosexual male relationship. He claims discrimination based upon a commingling of these two grounds. H. (D.W.) v. R. (D.J.) S.M. Bensler J. 327

40 As the Court in Withler held, at para. 58: ...An individual or a group’s experience of discrimination may not be discernible with reference to just one prohibited ground of discrimination, but only in reference to a conflux of factors, any one of which taken alone might not be sufficiently revelatory of how keenly the denial of a benefit or the imposition of a burden is felt... 41 The above approach allows for the flexibility required to accommo- date claims based on intersecting grounds of discrimination: Withler, para. 63. 42 The Intervener argues that the fact that Mr. H. was not recognized as a parent and guardian by operation of law in circumstances where assisted conception was used - where he intended to be a parent and was in a spousal relationship with the genetic father of the child - has nothing to do with his gender or sexual orientation. Rather, the Intervener argues the FLA operates identically for all people where neither partner can carry the child, regardless of their gender or sexual orientation. It argues that under the FLA regime, adoption is the means for the non-biological partner to become a parent. 43 The Intervener further argues that in relation to parentage in cases where assisted conception must be used, the Act is not about making parents by operation of law based solely on intent as opposed to biology. Rather, the Intervener submits there must be an appropriate biological connection coupled with an intention to parent. 44 With respect, I disagree with the Intervener’s interpretation of the Act. The FLA clearly provides for a mechanism whereby a non-biological partner can be considered a parent based upon intention. Section 13(2)(b) provides that a male who is in a spousal relationship (or its equivalent) with a female who becomes pregnant through assisted conception is the father of the resulting child, even if his sperm was not used in the fertilization process, as long as he consents in advance to being a parent. This is clearly an instance of an individual becoming a parent by operation of law based solely on intent as opposed to biology without having to resort to the adoption process. It is also, given the wording of s. 13, applicable only to heterosexual couples using assisted conception. 45 The FLA recognizes that in some instances, although each member of a couple has healthy genetic material, the couple nonetheless requires assistance in conceiving a child. The Act thus contemplates circumstances wherein each member of a heterosexual couple will be able to use their 328 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

own genetic material to create a foetus, albeit where conception must take place through a means other than intercourse. 46 For example, under s. 12 (surrogacy) a female person (genetic donor) can provide her own egg which has been fertilized using her male partner’s sperm, with the foetus being carried to term by a gestational carrier. In this circumstance the male partner of the female genetic donor is recognized as the biological father of the child by operation of ss. 1(f)(i) and 13(1) and (2). The genetic donor can (with consent of the genetic carrier) apply for an order following the birth of the child to be declared the sole mother: s. 12(2)-(5). Likewise, under s. 13(2)(a) each member of a heterosexual couple is able to provide their own genetic material in order to create a foetus, although fertilization takes place outside of the uterus. 47 By operation of biology, gay couples are unable to each provide the genetic material required to produce a baby. Unlike heterosexual couples (where if possible each member can donate genetic material), gay couples are forced to elect which partner will use his or her genetic material for the purposes of fertilization. The decision may be the result of discussion, an arbitrary election, or even of medical necessity (in this case Mr. H. is HIV positive and as such would not be a candidate to provide genetic material). Therefore, in all gay couples, at least one partner must rely solely on the “intended” parental provisions of the Act. 48 Furthermore, the limited recognition of parenthood in the FLA is not restricted to “intended” gay parents, but to biological parents as well. As noted by Eidsvik, J., under the FLA, Mr. R. is not considered the child S.’s father. Notwithstanding the fact that his sperm was used in the fertilization process, he is not deemed a father in the same way that a heterosexual male in a spousal relationship with Ms. D. would have been. As such, the FLA fails to bestow parentage on a homosexual individual (Mr. R.) who is both a biological and intended father. 49 Indeed, s. 13 of the FLA bases male parentage upon the existence of a spousal relationship with the birth mother; an occurrence which will never be realized in a gay male relationship. Under the historical version of the FLA, the spouses in a gay union could never be recognized as parents by operation of law. I recognize that the situation faced by gay parents has been alleviated by s. 8.1 of the Amended Act, assuming consent of the surrogate. This, of course, is not the situation before Messrs. H. and R. 50 The FLA’s limited recognition of parenthood in this regard operates to an unfair disadvantage to gay couples where both partners in a gay H. (D.W.) v. R. (D.J.) S.M. Bensler J. 329

union fully intend to act as parents to the child. As shall be seen, the forced election as to which individual in a gay couple is to donate genetic material creates an additional disadvantage for the non-donor spouse. As a result, the FLA confers upon heterosexual spouses a benefit (parental presumption under s. 13(2)(a) and (b) or parental status under a relatively easy process under s. 12) that is denied to homosexual spouses. As is apparent upon reading Fraess, this distinction is even more pronounced in the case of a homosexual male couple, given the presumption of parentage that is linked to the existence of a spousal relationship with the birth mother. As such, I find that the Applicant has established an adverse distinction based upon an enumerated or analogous ground. 51 The second stage of the s. 15 inquiry involves an examination as to whether the impugned legislation has a purpose or effect that is discriminatory within the meaning of the equality guarantee. 52 Discrimination was described by McIntyre, J. in Andrews v. Law Society (British Columbia), [1989] 1 S.C.R. 143 (S.C.C.), at pp. 174 - 175: ...I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics at- tributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed. 53 In the case at bar Mr. H. argues that the FLA creates a substantive inequality by perpetuating disadvantage, prejudice or stereotyping in its treatment of gay couples using assisted conception technology. As the Court noted in Withler, the contextual factors relevant to this stage of the inquiry will vary with the nature of each case: para. 66. 54 In turn the Intervener argues that the fact that a gay male couple will biologically require a donor egg and a gestational female carrier in order to become parents does not, in itself, establish a violation under s. 15. In so arguing the Intervener relies, in part, on Susan Doe v. Canada (Attorney General), 2007 ONCA 11, 276 D.L.R. (4th) 127 (Ont. C.A.). I agree with the Intervener in this regard. However, while the FLA obviously legislates within biological reproductive realities, its effect on gay 330 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

parents and especially gay male parents must be scrutinized against the claim of discriminatory treatment. 55 In the case at bar, there are two issues to examine in order to determine whether the law creates a distinction towards the claimant group. First, I must examine the Applicant’s submission that the FLA recognizes the wrong person as a parent in a gay male family (Ms. D.) and that the Act should recognize only the intended gay male fathers as parents and guardians by operation of law. 56 I agree fully with the Intervener that the FLA does not discriminate against gay intended parents by failing to automatically “force” a birth mother to relinquish a child to intended gay parents by operation of law. A review of the FLA makes it clear that where a woman carries a baby for another couple (or individual), the only way she can cease to be the legal mother of the child is through consenting to a declaration of parentage in a surrogacy application (s. 12) or through an adoption order made under the Child, Youth and Family Enhancement Act, R.S.A. 2000, c. C- 12. While adoption orders may be made absent the consent of the birth mother, the circumstances surrounding such types of orders are not before the Court today. 57 Although the surrogacy sections of the FLA are not applicable in the present case (in that they require a donor egg and a gestational carrier as opposed to a donor sperm and a gestational carrier) this section acts to highlight the similarity of treatment between all individuals utilizing a surrogate. If a heterosexual couple or a lesbian couple utilized this method, consent of the surrogate must be provided in order to declare the “intended” mother to be the sole mother of the child. This consent is required even though the “intended” mother’s genetic material (egg) was utilized in the conception process. Under this section, any agreement whereby the birth mother had agreed to relinquish the child to the “intended” parents is not enforceable. 58 Under s. 13 (assisted conception), the rights of the birth mother are similarly enshrined. Unlike the surrogacy section, this section does not provide a mechanism for relinquishment by consent. It also envisions the birth mother using her own egg in the conception process. As such, the only way a female giving birth under s. 13 can cease to be the legal mother of the child is through the adoptive process. The Applicant has failed to demonstrate discriminatory treatment: any individual falling under this section, regardless of gender or sexual orientation, would have H. (D.W.) v. R. (D.J.) S.M. Bensler J. 331

to proceed through the adoption process in order to have a birth mother’s rights so relinquished. 59 Moreover, I accept the argument put forth by the Intervener that any legislated forced relinquishment of parental status by the birth mother would fly in the face of various laws enacted to ensure the best interests of the child, to say nothing of the negative effect upon women’s autonomy. 60 The Intervener relies on a publication entitled Proceed with Care: Fi- nal Report of the Royal Commission of New Reproductive Technologies (Canada: Minister of Government Services, 1993) where it was opined, at p. 666 that: There is certainly a body of legal opinion that states that legitimizing preconception arrangements would be inconsistent with existing family law principles. This is because a contract that provides in advance for handing over a child at birth would be at odds with fundamental principles of family law - that custody must be determined according to the best interests of the child and that parental authority and obligations cannot be legally “contracted away” in anticipation. Adults cannot simply transfer custody of a child at their whim: the child’s best interests must guide decisions and actions in this respect. [emphasis added] 61 The FLA operates in accordance with other provincial and federal legislation in providing that the best interests of the child remain paramount in determining a wide range of issues relating to the well-being of children; including parentage, guardianship, custody and access. I agree with the Intervener that the decision to legislatively recognize the initial rights and obligations of the birth mother is in keeping with the overall goal of ensuring the best interests of the child and that to force a capable birth mother to relinquish a child is contrary to family law policy in Can- ada. Our Supreme Court has stated that legislative policy goals may be relevant contextual factors in considering whether the impugned law per- petuates disadvantage or prejudice: Withler, para. 71. I find that the clear legislative policy goals of ensuring the best interests of the child do not act to perpetuate any disadvantage in this instance. 62 The Applicant has failed to demonstrate how a failure to provide for automatic relinquishment of a birth mother’s status as parent offended his s. 15 rights. He is treated no differently than other “intended” parent regardless of gender or sexual orientation, none of whom are entitled to force a birth mother to automatically relinquish a child by operation of 332 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

law. The Applicant has failed to produce any argument as to why he should stand on a footing unequal to other intended parents utilizing a surrogate or otherwise utilizing assisted conception. 63 I pause to note that the newly proclaimed Amended Act does not provide for the automatic relinquishment of a birth mother’s parental status. The surrogacy provisions in the Amended Act provide for greater ac- knowledgment of an individual standing in a spousal relationship where their partner’s genetic material was used in the assisted reproductive process. However, the Amended Act does not bestow parentage upon an “intended” (non-donor) individual in place of the birth mother. Moreover, s. 8.2(6)(b) is clear that consent of the surrogate is still required to relinquish her position as parent, and that any surrogacy agreement remains unenforceable: s. 8.2(8). Nor is there any automatic relinquishment under the assisted reproduction provisions: s. 8.1. This is so whether the intended parents are in a heterosexual, lesbian or gay male relationship. 64 Given my finding that the automatic recognition of a child’s birth mother does not violate s. 15, it is unnecessary to consider whether any infringement is justified under s. 1. 65 I turn next to whether the FLA is discriminatory in failing to recognize the Applicant as a parent in addition to Ms. D. retaining her parental status; that is, an inclusive approach to parental recognition. 66 The FLA does not envisage gay couples as parents by operation of law. While the Act does not draw any distinction in its provisions which operate to remove the birth mother as a parent by operation of law, I find that it fails to treat gay couples the same as heterosexual couples when it comes to inclusive provisions. In the case of a gay male couple, neither individual is considered a parent under the Act, even if the genetic material of one of the male spouses is used in the assisted conception. Had Mr. R. been in a heterosexual relationship with Ms. D. at the time of conception, he would have been considered S.’s father under the Act by operation of s.13(2)(a). Had Mr. H. been in a heterosexual relationship with Ms. D. he would have been the child S.’s father under the Act by operation of s. 13(2)(b). The FLA simply does not contemplate situations of gay couples as co-parents. 67 While not brought before the Court as a constitutional challenge, the decision in A. (A.) v. B. (B.), 2007 ONCA 2, 278 D.L.R. (4th) 519 (Ont. C.A.) is of note in this Application. In A.A., the Court held that a legislative gap under the Child Law Reform Act (“CLRA”), which did not allow for a child to have two mothers, was not a deliberate attempt by the legis- H. (D.W.) v. R. (D.J.) S.M. Bensler J. 333

lation to prevent lesbian co-parents and invoked its parens patriae jurisdiction to declare the applicant a mother of the child. AA and CC were females in a same-sex spousal relationship. BB was a male friend of the couple who assisted them in having a child by enabling CC to conceive. The parties agreed that AA and CC would be the primary caregivers for the child, who referred to both of them as his mother. All parties wanted AA’s status as the child’s mother to be recognized. They also agreed that it would be in the best interests of the child for BB to remain involved in his life. 68 The Court held that it would be contrary to the child’s best interests to deny legal recognition of both of his mothers, as well as his father. The Court noted that the declaration of parentage was important in this instance as BB would lose his status as a parent if AA applied for an adoption order. The Court discussed a number of advantages to recognizing the parental status of AA under Ontario law, at paras. 14-15 including: • the declaration of parentage is a lifelong immutable declaration of status; • it allows the parent to fully participate in the child’s life; • the declared parent has to consent to any future adoption; • the declaration determines lineage; • the declaration ensures that the child will inherit on intestacy; • the declared parent may obtain a provincial health card, a social insurance number, airline tickets and passports for the child; • the child of a Canadian citizen is a Canadian citizen, even if born outside of Canada; • the declared parent may register the child in school; • the declared parent may assert her rights under various laws such as the Health Care Consent Act; and • upon death of one of the spouses the surviving mother would be able to continue to make decisions for the minor child. 69 The Court of Appeal also noted the Victorian Law Reform Commis- sion’s position paper entitled Assisted Reproductive Technology & Adop- tion: Position Paper Two: Parentage at pp. 15 and 17, as referred to in Rutherford v. Ontario (Deputy Registrar General) (2006), 270 D.L.R. (4th) 90 (Ont. S.C.J.) as follows: These submissions reported that the non-birth mother often en- counters obstacles and ignorance, and at times hostility, in her deal- 334 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

ings with government agencies and service providers where legal status is a relevant factor. Because the non-birth mother cannot be named as a parent on the child’s birth certificate, she is unable to produce evidence of her relationship to the child unless she has taken steps to obtain a Family Court parenting order or some form of written authority from the birth mother. [W]e [Lesbian Parents Project Group] feel that legal recognition of our role as parents to our children is essential for their safety and social well being. It is critical to children that they have reflected back to them the value and integrity of their lives, including the legit- imacy of their families ... Equal familial status sends a powerfully positive message to all social institutions that have an influence on our children’s lives. It obliges them to acknowledge and respect the families our children live in. 70 The Court agreed, at para. 32, that while Ontario’s legislation contemplated only one mother and one father, and that while it favoured a biological preemption: ...the Act does not define parentage solely on the basis of biology. For example, s. 1(2) treats adopting parents as natural parents. Often one or both of the adopting parents will not be the biological parents of the child. Similarly, s. 8 enacts presumptions of paternity that do not all turn upon biology; the obvious example is the presumption of paternity flowing simply from the fact that the father was married to the child’s mother at the time of birth. Further, as Ferrier J. pointed out in T.D.L. v. L.R.L., [1994] O.J. No. 896 (S.C.J.) at para. 18, the declaration made under s. 4(1) is not that the applicant is a child’s natural parent, but that he or she is recognized in law to be the father or mother of the child. 71 The Court went on, at paras. 33 -35 to find that: ...even if the CLRA was intended to limit declarations of paternity and maternity to biological parents, that would not answer the question of whether there is a gap. Advances in reproductive technology require re-examination of the most basic questions of who is a biological mother.... I return to the earlier discussion of the intention of the CLRA. The legislation was not about the status of natural parents but the status of children. The purpose of the legislation was to declare that all children should have equal status. At the time, equality of status meant recognizing the equality of children born inside and outside of marriage. The Legislature had in mind traditional unions between one mother and one father. It did not legislate in relation to other types of relationships because those relationships and the advent of reproduc- H. (D.W.) v. R. (D.J.) S.M. Bensler J. 335

tive technology were beyond the vision of the Law Reform Commis- sion and the Legislature of the day.... Present social conditions and attitudes have changed. Advances in our appreciation of the value of other types of relationships and in the science of reproductive technology have created gaps in the CLRA’s legislative scheme. Because of these changes the parents of a child can be two women or two men. They are as much the child’s parents as adopting parents or “natural” parents. The CLRA, however, does not recognize these forms of parenting and thus the children of these relationships are deprived of the equality of status that declarations of parentage provide. [emphasis added] 72 Of note, the Court concluded that the Legislature simply did not fore- see the possibility of declarations of parentage for two women at the time of drafting, and that to find a failure to do so was deliberate “requires assigning to the Legislature a discriminatory intent in a statute designed to treat all children equally.” I note that the Attorney General of Ontario did not appeal the decision of the Ontario Court of Appeal: 2007 SCC 40 (S.C.C.) [Alliance for Marriage & Family v. A. (A.)], para. 6. 73 The FLA was relatively new legislation, and the drafters have turned their minds to advances in science making assisted conception a reality. While concerns over same-sex relationships were known, they were not addressed in a concrete fashion. For example, the following concerns were raised during the Legislative Assembly debates, Alberta Hansard, No. 56 (December 3, 2003) at 2087-2088 (Laurie Blakeman): There are inequities that are being created with this bill that I was trying to correct. In particular, I think we have caused some people to have to go to additional expense and time and through court manoeuvers in order to achieve what they are seeking, particularly around the surrogacy and assisted-conception sections that are in the bill, where in effect we are now creating legal parents. Because of the technological advances in new reproductive technology, we can create parents where we couldn’t before. I was seeking to be able to have many different people be able to seek these remedies, to be creating parents rather than to be creating specifically mothers and fathers. I felt that the concept of parent was more inclusive and more important, therefore, than segregating this into stereotypical gender-specific roles. The government was not supportive of that. I think these are the areas that were most likely to receive the challenges. 336 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

74 See also the Legislature of Alberta Debates, Alberta Hansard (No- vember 27, 2003), at p. 1950, where a proposal (unadopted) was made to revise s. 12 of the FLA using more gender-neutral language based upon the following concern: So this is getting around that problem where we’re sending people off to court after the fact basically for them to adopt a child and go through the court process. I think we want it to be Charter-proof and we want to have this open to many different kinds of families. Spe- cifically, I think we need to be alive to the possibilities of same sex parents here, so I brought forward this amendment hoping that we could get support for this and be able to do it right the first time and not have to come back with a Charter challenge and fix it later. 75 In comparison to gay male couples, lesbian couples are placed in a slightly more advantageous position through the operation of biology in that the assisted conception provisions of the FLA recognize the birth mother as a legal parent. Presuming there is no surrogacy arrangement with a third party, lesbian couples have the assurance that at least one of the spouses will be recognized as a parent (being the spouse who carries the child to term). While this places lesbian couples in an advantageous position vis-`a-vis gay male couples (where neither male is provided with parental recognition by operation of law) the FLA does not provide a mechanism for recognition of a female in a same-sex relationship who does not carry the child. 76 This situation was addressed by our Court in Fraess, where the female spouse of the biological mother applied to have s. 13(2)(b) of the FLA declared unconstitutional. The applicant was in a spousal relationship with her female partner who had become impregnated through artificial insemination (the couple purchased sperm from an anonymous do- nor). Throughout the pregnancy and afterwards both women assumed the role of parent to the child. The applicant then learned that under the FLA she would be a legal stranger to the child unless she proceeded with a step-parent adoption. The applicant argued that if she had been in a heterosexual relationship with her spouse, she would have been deemed a parent by operation of s. 13(2)(b) of the FLA and that as a woman married to the biological mother, she was denied the benefit of this law. 77 The applicant therefore argued that the FLA conferred a significant benefit to heterosexual spouses but denied her and other lesbian spouses the same benefit, thus forcing them to engage in a separate and protracted legal process in order to obtain the same parental acknowledg- H. (D.W.) v. R. (D.J.) S.M. Bensler J. 337

ment granted to opposite sex spouses by operation of law. The Court agreed, holding, at para. 6 that: The law is clear that where a law is creative of legislated consequences for opposite sex couples and excludes from its ambit same sex couples the law will violate s. 15(1) of the Charter. See M v. H, [1999] 2 S.C.R. 3. The effect of s. 13 of the Family Law Act is to confer upon opposite sex spouses a benefit denied same sex spouses. Men married or partnered to women can receive parental status immediately upon the birth of the child conceived through artificial insemination provided that they consented to being a parent in advance of the conception. Women married or partnered to women cannot. Such a provision clearly violates s. 15(1) of the Charter of Rights and Freedoms. 78 The Court found that given such violation, the appropriate measure was to read in language that would include the applicant as a spouse to the biological mother of the child. The Court disagreed with the suggestion that the section be severed, which would have resulted in all non- biological “intended” parents having to proceed through adoption, regardless of sexual orientation. Rather, it held, at para. 13 that: ...It seems extraordinary that once the Legislature as a policy matter accepts a person can be a parent through intention that should be taken away from those persons because it is discrimination under the Charter. [emphasis added] 79 In determining that a “reading in” was the proper approach, the Court stated as follows, at para. 9: This would be a sufficiently “distinct” provision for the purposes of the analysis giving rise to when “reading in” is appropriate. Further- more the legislative objective of s. 13 of the Family Law Act is clear. Once the subsection confers parental status on the spouse or partner of the biological mother whether or not such person contributed genetic material provided that they consented to being a parent in advance of the procedure. The proposed provision would include a group of spouses or partners whose exclusion violates the Charter so that their inclusion could only further the goals of the legislation. [emphasis added] 80 The Applicant argues that as per Fraess, he is discriminated against in that the FLA deems parentage in situation where a male was in a spousal relationship with the biological mother of the child and the male intended to act as a parent to child notwithstanding the fact that his biological material was not used in the assisted conception process. 338 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

81 While Fraess can obviously be distinguished on the basis that the applicant was in a same-sex relationship with the mother of the child, I do not find this distinction fatal to Mr. H.’s claim. Section 13(2)(b) of the FLA allows for a heterosexual male to be deemed the parent of a child born to the biological mother if he is in a spousal relationship with the mother and consented to be the parent of the resulting child conceived through assisted conception. Fraess concluded that the FLA discriminated against lesbian partners in a similar position. In so doing, the Court confirmed that the FLA “...as policy matter accepts a person can be a parent through intention.” 82 Section 13(2)(b) of the FLA permits individuals, both male and (post Fraess) female, to be deemed parents where they were in a spousal relationship with the biological mother of the child and intended/consented to act as the child’s parent. By definition, a gay man will never be in a spousal relationship with the biological mother and thus will always be excluded from being deemed a parent under this provision. As such, gay males are denied an advantage (declaration of parentage by operation of law) that is bestowed upon all other individuals under s. 13(2)(b). 83 The Intervener argues that the FLA treats all instances where a couple wants to be parents, but neither individual can carry a child, identically. While this is true in that such couples would of necessity fall under the surrogacy provisions in s. 12 (where the foetus is carried to term by a gestational carrier instead of the gestational donor) with respect, this argument fails to address the inherent inequities created under the FLA. 84 Under the FLA, a gay male, regardless of whether he provided sperm for the purposes of the artificial conception, cannot be deemed a parent by operation of law. At the end of the day, the only individuals who can be recognized as parents based upon consent/intent (absent a surrogacy declaration or adoption) are those who are in a spousal relationship with the biological mother. Again, this will never be a gay male. The FLA legislates a benefit for individuals in a spousal relationship with the biological mother, which assumes the existence of a heterosexual relationship or (post Fraess) a lesbian relationship. By failing to provide a similar benefit for gay males (whether as genetic donor or intended/consensual father) the FLA creates a distinction that transcends the mere operation of biology. 85 Consider the application of the FLA to the facts at bar: while the parties are not in full agreement as to the exact role Ms. D. was to play in the child S.’s life, Eidsvik, J. found that the arrangement entailed that S. H. (D.W.) v. R. (D.J.) S.M. Bensler J. 339

was to be cared for and raised mainly by Messrs. R. and H., with Ms. D. having weekly access. Under the FLA the only legal parent to the child S. is Ms. D., notwithstanding the fact that she is not the child S.’s primary caregiver and that the child S. does not normally reside with her. On the other hand Mr. H. and Mr. R., the child S.’s papa and father, acquire no parental or guardianship rights or responsibilities (outside of those attached to in loco parentis status). It is difficult to see how this arrangement, whereby the FLA acknowledges the parentage of only the birth mother while excluding both the biological and intended/consensual father, can be seen as operating in the best interests of the child S. 86 The Intervener argues that in limiting the number of parents that a child can have to two, the FLA creates a distinction based upon number as opposed to any ground under s. 15. With respect, I again disagree. While the particular circumstances surrounding the birth of S. may not have been foreseen at the time of drafting, the FLA operates to create a distinction based upon gender and sexual orientation in that only same- sex spouses are excluded from deemed parentage under s. 13(2)(b). 87 The Intervener further submits that the ability to make decisions in respect of a child is attached to guardianship status as opposed to parentage status and the FLA does not limit the number of guardians a child may have. While this is an accurate statement in law, it does not address the inequality suffered by gay male parents in the position of either Mr. R. or Mr. H. The Court acknowledges that Mr. R. has already success- fully applied for status as the child S.’s guardian and that Mr. H.’s application is pending. However, it is the very fact that both individuals had to engage in an additional and protracted court process in order to receive such status that is in issue. Under s. 20 of the FLA, a male and female living together in a spousal relationship are both the mother and father of the child as well as the guardians of the child. Thus, in a traditional family, no further court process is required to receive guardianship status. In a gay male relationship the additional step of seeking guardianship status or an adoption order is always required. 88 The Court in Withler summarized the fundamental analysis concerning equality rights at para. 54: In summary, the theme underlying virtually all of this Court’s s. 15 decisions is that the Court in the final analysis must ask whether, having regard to all relevant contextual factors, including the nature and purpose of the impugned legislation in relation to the claimant’s situation, the impugned distinction discriminates by perpetuating the group’s disadvantage or by stereotyping the group. 340 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

89 Even though both Messrs. R. and H. are able to apply for guardianship status, this is not the same as being a legal parent. The majority in Kapp revisited the decision in Law v. Canada (Minister of Employment & Immigration), [1999] 1 S.C.R. 497 (S.C.C.), where the Court had suggested that discrimination should be defined in terms of the impact that the impugned law has on the human dignity of the claimant, having regard to four factors. In Kapp the majority acknowledged that while several difficulties have arisen from the attempt to employ human dignity as a legal test, it remains an essential value underlying the s. 15 equality guarantee: para. 21. 90 The effect of the FLA is that when gay males in a committed relationship decide to have a family assisted by a female (in this instance with the assistance of a friend who conceives for them) they should either be satisfied with guardianship status (which they must apply for to receive) or they must undertake the protracted adoption process. Denying a gay father (biological or intended) the status of legal parent has a negative effect on his human dignity. The significance of parental status has been recognized by our Supreme Court, as summarized in Trociuk v. British Columbia (Attorney General), 2003 SCC 34, [2003] 1 S.C.R. 835 (S.C.C.), at para. 15: Parents have a significant interest in meaningfully participating in the lives of their children. In B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at para. 85, La Forest J. wrote that “individuals have a deep personal interest as parents in fostering the growth of their own children”. In a similar vein, Wilson J. in R. v. Jones, [1986] 2 S.C.R. 284, at p. 319, wrote: “The relations of affection between an individual and his family and his assumption of duties and responsibilities towards them are central to the individual’s sense of self and of his place in the world.” 91 The ultimate operation of the FLA suggests that same-sex couples are somehow less able, or less worthy, of being parents. This reflects outdated assumptions or understandings about family in Canadian society. 92 At the end of the day, I find that s. 13(2) discriminates against gay males in that it fails to confer a benefit (recognized paternity) and forces gay male parents to endure an extended and protracted legal process in order to have their guardianship and parentage recognized. H. (D.W.) v. R. (D.J.) S.M. Bensler J. 341

Having found infringement, is the impugned law saved under a s. 1 analysis? 93 The Intervener submits that in the event that this Court finds that the impugned provisions of the FLA infringe upon the Applicant’s s. 15 Charter rights, that any such infringement is demonstrably justified under s. 1 of the Charter, which reads: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 94 The test for justification was established in R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.). The onus of showing that a law is saved by s. 1 rests on the party seeking to uphold the limitation. To satisfy this test the government must show that: (1) the legislation addresses a “pressing and substantial” objective; (2) a rational connection between the impugned legislative measure and the objective exists; (3) the legislation impairs rights and freedoms as little as possible; and (4) a proportionality exists between the importance of the objective and the injurious effects of the legislation. It is clear that the limitation in issue in this instance is “prescribed by law.” 95 As Dickson, J., writing for the majority in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 (S.C.C.) stated at p. 352: At the outset, it should be noted that not every government interest or policy objective is entitled to s. 1 consideration. Principles will have to be developed for recognizing which government objectives are of sufficient importance to warrant overriding a constitutionally protected right or freedom. Once a sufficiently significant government interest is recognized then it must be decided if the means chosen to achieve this interest are reasonable — a form of proportionality test. The court may wish to ask whether the means adopted to achieve the end sought do so by impairing as little as possible the right or freedom in question.

(1) Pressing and Substantial Objective 96 I agree with the Intervener that one of the primary considerations of the FLA is assurance of the child’s well-being. In order to ensure the safety and security of children, the FLA operates to identify an adult(s) to assume responsibility for the child, to protect the child and to make essential decisions on behalf of the child. Protection of the best interests of children is a pressing and substantial objective. 342 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

97 Having found a pressing and substantial objective, I now move on the proportionality test as set out in Oakes.

(2) Rational Connection 98 At this stage, the Intervener must show that the impugned provisions are rationally connected to the goal of ensuring the welfare of children. To establish a rational connection, the Intervener “must show a causal connection between the infringement and the benefit sought on the basis of reason or logic”: RJR-Macdonald Inc. c. Canada (Procureur g´en´eral), [1995] 3 S.C.R. 199 (S.C.C.), at para. 153. The rational connection requirement is aimed at preventing limits being imposed on rights arbitrarily: Hutterian Brethren of Wilson Colony v. Alberta, 2009 SCC 37, [2009] 2 S.C.R. 567 (S.C.C.)at para. 48. 99 The challenged provisions act to determine parentage in situations outside of the “normal” conception process. They provide consistency and predictability in establishing who, exactly, is charged with providing care for and protection over the child upon birth. While the Intervener has established a connection between establishing clear parental status and the objective of ensuring the well-being of the child, the FLA is un- derinclusive in this regard. As noted above, the operation of the Act has resulted in the following scenario: the child S. resided primarily with her Daddy and her Papa. While she maintained regular access with Ms. D., it was Messrs. R. and H. who acted as her primary caregivers. However, the child S.’s sole parent and legal guardian was Ms. D., an individual who did not exercise day-to-day care over the child S., who did not accept primary responsibility for her, and who was not contributing finan- cially towards her expenses. 100 As a result, while the FLA has as an objective the protection of children through the naming of a clearly identifiable parent and guardian, it arguably does not achieve this goal when same-sex male parents are involved (outside of recourse to the adoption process or guardianship order). If anything, the goals of the FLA are undermined by the impugned sections. Furthermore, the Intervener did not put forth a convincing argument as to why a three-parent model will fail to achieve the goal of ensuring that an adult individual is named who will care for and protect a child upon birth. 101 Even if I am incorrect in this regard, and a rational connection has been proven, I find that the Intervener has failed to satisfy the remaining steps in the Oakes test. H. (D.W.) v. R. (D.J.) S.M. Bensler J. 343

(3) Minimal Impairment 102 The majority in Hutterian Brethren of Wilson Colony explained the minimal impairment analysis as follows, at para. 53: The question at this stage of the s. 1 proportionality analysis is whether the limit on the right is reasonably tailored to the pressing and substantial goal put forward to justify the limit. Another way of putting this question is to ask whether there are less harmful means of achieving the legislative goal. In making this assessment, the courts accord the legislature a measure of deference, particularly on complex social issues where the legislature may be better positioned than the courts to choose among a range of alternatives. 103 Regard may also be had to the oft-cited quote from RJR-MacDonald, at para.160, setting out the appropriate standard: The impairment must be ‘minimal’, that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tai- loring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement. 104 The Intervener argues that it would not be possible to legislate in a fashion that would address all of the possible combinations of parents and guardians of a child arising by operation of law. While parents are generally also guardians, guardianship powers may be allocated according to the particular circumstances of each child, based upon what is in the child’s best interests. 105 The Intervener submits that because various rights and responsibilities flow from holding either parentage or guardianship status, laws that are too inclusive or too exclusive will have deleterious results. It argues that because it is difficult to know where to draw the line, some degree of deference should be given to the legislature in establishing the status of parents and guardians. 106 I agree that some degree of deference should be afforded, especially given the wide ranging consequences involved once a legal familial relationship has been established. However, while the Legislature is charged with balancing an individual’s desire to be a parent while attempting to provide for the care and protection of children, it must do so in a fashion which impairs rights and freedoms as little as possible. 344 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

107 The Intervener argues that the failure to make the Applicant a parent by operation of law is minimally impairing in that the Applicant could - and did - apply to the Court for a contact order and for status as the child’s guardian. It submits that in cases where the FLA is unable to provide clear rules as to who is a parent or guardian, an application to the Court is available in order to determine such status. As such, it submits that recourse to the Court in these circumstances will satisfy the minimal impairment test. 108 I disagree with the Intervener that the impugned provisions of the FLA minimally impairs the Charter protected equality rights of homosexuals - especially homosexual males - seeking to raise a family. The fact that a homosexual male has the option of applying for guardianship status (through the FLA) or for parentage status (through the adoption process) is not an adequate substitute for the recognition automatically given to other couples. Again, a heterosexual male who “intends” to have a child with his partner can be automatically named as a parent under s. 13(2) whether or not his genetic material is actually used in the conception process. I do not find that the reasoning in Trociuk v. British Columbia (Attorney General), 2003 SCC 34, [2003] 1 S.C.R. 835 (S.C.C.). assists the Intervener. 109 In arguing minimal impairment the Intervener states in its brief that “[Mr. H.] had the right to apply to the Court for a contact order with respect to the child. He did so and the Order was granted.” While the Intervener portrays this a relatively simple process, its submission fails to account for the fact that the Applicant was forced to go to the Court of Appeal to gain such an order. Because the legal status of the Applicant was unclear under the FLA, the Court of Appeal had to undergo the process of determining his status with respect to the child S. before considering whether to make a contact order under s. 35. This additional step would not have been required had the Applicant been deemed a legal parent by operation of law. Of note, in originally denying the order, the chambers judge determined that the wishes of the guardians were entitled to considerable weight (wherein only Mr. H. and Ms. D. were considered guardians). I find that the history of this case before the courts evidences that for an individual in the position of the Appellant, obtaining any rights with respect to S. may not be as straightforward as suggested by the Intervener, as his status under the FLA is non-defined. 110 As discussed above, the act of becoming a parent and being recognized as such plays a major role in defining one’s identity and sense of H. (D.W.) v. R. (D.J.) S.M. Bensler J. 345

self. It is difficult to accept an argument that legislation which restricts one’s status in this regard to that of guardian or which limits one’s role and involvement in a child’s life to an exercise of custody and access is minimally impairing. 111 In determining whether an individual’s rights have been minimally impaired, regard may be had to the fact that alternatives available to a complainant may not address the overall implications arising from exclusion. As Cory and Iacobucci, J.J. wrote for the majority in M v. H, [1999] 2 S.C.R. 3 (S.C.C.) at para. 124: ...It must also be remembered that the exclusion of same-sex partners from this support regime does not simply deny them a certain benefit, but does so in a manner that violates their right to be given equal concern and respect by the government. The alternative regimes just outlined do not address the fact that exclusion from the statutory scheme has moral and societal implications beyond economic ones, as discussed by my colleague, Cory J., at paras. 71-72. Therefore the existence of these remedies fails to minimize sufficiently the denial of same-sex partners’ constitutionally guaranteed equality rights. 112 What is more, I cannot accept the Intervener’s argument that it would not be possible to legislate in a fashion that would address all of the possible combinations of parents of a child arising by operation of law. The provisions of the FLA dealing with assisted conception will be utilized by three types of couples: heterosexual couples faced with fertility issues who make use of assisted conception; same-sex female partners, and same-sex male partners. By necessity these two latter groups will have to make use of assisted conception using a third party’s genetic material in order to become parents (as will individuals using assisted conception). I do not accept the argument of the Intervener that it would be too difficult for the Legislature to determine the parental status of each member of these three groups in a clear and comprehensive fashion. 113 In the present case, the government has failed to show that it had a reasonable basis for concluding that the rights of same-sex couples were impaired no more than was reasonably necessary to achieve its goals.

(4) Proportionality Between the Importance of the Objective and the Injurious Effects of the FLA 114 The proportionality test was aptly described by L’Heureux-Dub´e, J. in Egan at para. 76: Finally, there must be a proportionality between the discriminatory effects of the impugned distinction and the salutary effects of the 346 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

distinction: Dagenais v. Canadian Broadcasting Corp., supra. Fac- tors such as the importance of the state interest, the extent to which it is furthered by the impugned distinction, the constitutional and societal significance of the interests adversely affected, the severity of the rights deprivation suffered by the individual, and the potential for en- trenching marginalization or stigmatization of particular groups will all be relevant considerations to this branch of the s. 1 examination.[...] 115 The Intervener argues that the FLA adequately balances the interests of the child, the birth mother and any intended parents. Again, while the best interests of the child are of paramount concern, I do not agree that the wording of the legislation proportionately balances these needs against the discriminatory effects created towards homosexuals wishing to raise a family. While s. 13(2) presumes that a male in a heterosexual relationship with a female who conceives through the use of assisted conception should be recognized as a parent by operation of law (whether or not his sperm is actually used in the procedure) it does not make the same presumption about gay parents. Rather, such individuals must proceed through additional court processes to prove their fitness as guardians (through application) or parents (through adoption) and that their relationship with the child will indeed be in the best interest of that child. The damaging effects engendered by the exclusion of same-sex couples using assisted conception from parental status by operation of law are numerous and severe. They re-enforce outdated concepts which do not accurately reflect the realities of today’s family in Canada. As such, I find that the impugned legislation does not survive the final stage of the s. 1 analysis. 116 Having found a violation of the Applicant’s s. 15 Charter rights which is not saved under s. 1, I turn next to the question of appropriate remedy.

Remedy 117 Section 52(1) of the Charter provides that: The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. 118 Section 24(1) of the Charter provides that: Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent ju- H. (D.W.) v. R. (D.J.) S.M. Bensler J. 347

risdiction to obtain such remedy as the court considers appropriate and just in the circumstances. 119 The Applicant is seeking a declaration of parentage under the FLA without the need to proceed through a protracted court process, as well as changes to the VSA that would introduce an appropriate birth registration document recognizing both homosexual males as parents. In addition, the Applicant is seeking Charter damages commensurate with the loss of his relationship with the child S., which he submits was caused as a result of the denial of his status under the FLA. 120 Section 52 is engaged when the law in issue is held to be unconstitutional, as opposed to when a particular action is taken which is found to violate a Charter right under an otherwise valid law. As the majority in Schachter v. Canada, [1992] 2 S.C.R. 679 (S.C.C.) instructs, at p. 717: Once s. 52 is engaged, three questions must be answered. First, what is the extent of the inconsistency? Second, can that inconsistency be dealt with alone, by way of severance or reading in, or are other parts of the legislation inextricably linked to it? This, should the declaration of invalidity be temporarily suspended? 121 Having found that the impugned legislation demonstrated a pressing and substantial objective, but failed to meet the rational connection, minimal impairment and proportionality branches of the Oakes test, the extent of the inconsistency should be defined fairly flexibly. In addressing whether severance or reading is a preferable approach to a declaration of invalidity, the majority in Schachter continued on to state, at p. 718: Severance or reading in will be warranted only in the clearest of cases, that is, where each of the following criteria is met: A. the legislative objective is obvious, or it is revealed through the evidence offered pursuant to the failed s. 1 argument, and severance or reading in would further that objective, or constitute a lesser interference with that objective than would striking down; B. the choice of means used by the legislature to further that objective is not so unequivocal that severance/reading in would constitute an unacceptable intrusion into the legislative domain; and, C. severance or reading in would not involve an intrusion into legislative budgetary decisions so substantial as to change the nature of the legislative scheme in question. 122 In his Notice of Motion, the Applicant requests, inter alia, a declaration that s. 13 of the FLA offended his s. 15 Charter rights by failing to 348 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

recognize gay males as parents by law, as well as a declaration to read into the impugned sections of the FLA “the words necessary to bring the sections into conformity with the Charter.” I interpret this as a request to read language in to the existing statute. 123 In this instance, an attempt by the Court to read in language acknowledging the parental status of men in same-sex relationships who utilize assisted conception in order to start a family would be an unacceptable intrusion into the legislative domain. As Wilson, J. stated in Thomson Newspapers Ltd. v. Canada (Director of Investigation & Research), [1990] 1 S.C.R. 425 (S.C.C.), at p. 500: It is not for the courts, in effect, to amend legislation to make it constitutional. As Dickson J. stated in Hunter, at p. 169: While the courts are guardians of the Constitution and of individuals’ rights under it, it is the legislature’s responsibility to enact legislation that embodies appropriate safe- guards to comply with the Constitution’s requirements. It should not fall to the courts to fill in the details that will render legislative lacunae constitutional. [...] 124 In addition, sections of the FLA which bestow parentage are inextricably linked to the remainder of the Act. This further decreases the ability to deal with the impugned section as a stand alone provision. Having found s. 13 of the FLA to be inconsistent with the Charter, and having found that reading in is not a workable remedy in the circumstances (which given the wording of s. 13 is distinct from the situation in Fraess), this section of the FLA is thus declared to be of no force and effect. A declaration of invalidity in this instance would necessarily result in those persons who currently fall under the Act (i.e. individuals in a spousal relationship with the birth mother) being denied the benefit of parentage under the legislation. As noted by our Supreme Court in Hislop v. Canada (Attorney General), 2007 SCC 10, [2007] 1 S.C.R. 429 (S.C.C.), at para. 90: ...In such cases, the Court has temporarily suspended the declaration of invalidity of the unconstitutional legislation to avoid creating a “legal vacuum” or “legal chaos” before Parliament or the legislature has the opportunity to enact something in place of the unconstitutional legislation: Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721 (“Manitoba Language Rights Reference”), at p. 747; Schachter. [page 467] In Schachter, this Court held that the suspended declaration of invalidity was appropriate when giving immediate retroactive effect to the Court’s declaration of invalidity would H. (D.W.) v. R. (D.J.) S.M. Bensler J. 349

(a) “pose a danger to the public”; (b) “threaten the rule of law”; or (c) “result in the deprivation of benefits from deserving persons”, such as when the legislation was “deemed unconstitutional because of underinclusiveness rather than overbreadth”: Schachter, at p. 719. 125 Given the overarching legislative goal of ensuring the best interests of the child, I do not think that removing parental status from either a genetic or intended parent (as provided for under the FLA) would further this legislative aim. As per Schachter, this would clearly “result in the deprivation of benefits from deserving persons” in instances where the Charter breach is based on underinclusiveness. 126 While I would have declared s. 13 of the FLA invalid while sus- pending this declaration, such a remedy would be moot given the intervening proclamation of the Amended Act. As of August 1, 2011, both ss. 12 and 13 of the FLA have been repealed. Thus, the offending provision is no longer in existence, although the relationship between Mr. H. and the child S. was legally determined historically under the FLA. The Charter challenge before this Court does not pertain to the Amended Act. 127 In addition to a declaration under s. 52, the Applicant is also seeking damages pursuant to s. 24 of the Charter. The Applicant submits that the lengthy and acrimonious legal dispute in which he was forced to become engaged may have been avoided if the presumption of parental status applied to him by operation of law. It is clear that the Applicant has been forced to pursue additional steps through the courts in order to have his relationship with S. acknowledged, as compared to an individual whose parental status has been recognized by operation of law. However, it is an unfortunate reality of family law that proceedings are often drawn out and acrimonious. As the parties live in different cities, detailed custody and access arrangements would still need to be agreed upon or ordered, division of property settled, and so on. Given the level of acrimony between the parties, it is naive to think that the various court processes could have been altogether avoided had the parental status of Messrs. H. and R. been set by operation of the FLA (although the number of court appearances would no doubt have been reduced). 128 The Applicant is not only seeking damages against the Intervener to compensate for his long journey through the courts, he is also seeking damages to compensate him for the loss of his relationship with S. While I acknowledge that the Applicant’s relationship with S. has all but disap- peared during his protracted journey through the justice system, I agree with the Intervener that an award of damages is inappropriate in the cir- 350 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

cumstances. I also note that the Applicant obtained a contact order giving him reasonable and generous access in 2009 but has not increased his access to S. since then. 129 The following passage from Mackin v. New Brunswick (Minister of Justice), 2002 SCC 13, [2002] 1 S.C.R. 405 (S.C.C.) is instructive in this regard: 78 According to a general rule of public law, absent conduct that is clearly wrong, in bad faith or an abuse of power, the courts will not award damages for the harm suffered as a result of the mere enactment or application of a law that is subsequently declared to be unconstitutional (Welbridge Holdings Ltd. v. Greater Winnipeg, [1971] S.C.R. 957; Central Canada Potash Co. v. Government of Saskatche- wan, [1979] 1 S.C.R. 42). In other words “[i]nvalidity of governmental action, without more, clearly should not be a basis for liability for harm caused by the action” (K. C. Davis, Administrative Law Trea- tise (1958), vol. 3, at p. 487). In the legal sense, therefore, both public officials and legislative bodies enjoy limited immunity against actions in civil liability based on the fact that a legislative instrument is invalid. With respect to the possibility that a legislative assembly will be held liable for enacting a statute that is subsequently declared unconstitutional, R. Dussault and L. Borgeat confirmed in their Admin- istrative Law: A Treatise (2nd ed. 1990), vol. 5, at p. 177, that: In our parliamentary system of government, Parliament or a legislature of a province cannot be held liable for anything it does in exercising its legislative powers. The law is the source of duty, as much for citizens as for the Ad- ministration, and while a wrong and damaging failure to respect the law may for anyone raise a liability, it is hard to imagine that either Parliament or a legislature can as the lawmaker be held accountable for harm caused to an individual following the enactment of legislation. [Foot- notes omitted.] 79 However, as I stated in Guimond v. Quebec (Attorney General), supra, since the adoption of the Charter, a plaintiff is no longer restricted to an action in damages based on the general law of civil liability. In theory, a plaintiff could seek compensatory and punitive damages by way of “appropriate and just” remedy under s. 24(1) of the Charter. The limited immunity given to government is specifically a means of creating a balance between the protection of constitutional rights and the need for effective government. In other words, this doctrine makes it possible to determine whether a remedy is appropriate and just in the circumstances. Consequently, the reasons H. (D.W.) v. R. (D.J.) S.M. Bensler J. 351

that inform the general principle of public law are also relevant in a Charter context. Thus, the government and its representatives are required to exercise their powers in good faith and to respect the “established and indisputable” laws that define the constitutional rights of individuals. However, if they act in good faith and without abusing their power under prevailing law and only subsequently are their acts found to be unconstitutional, they will not be liable. Otherwise, the effectiveness and efficiency of government action would be ex- cessively constrained. Laws must be given their full force and effect as long as they are not declared invalid. Thus it is only in the event of conduct that is clearly wrong, in bad faith or an abuse of power that damages may be awarded (Crown Trust Co. v. The Queen in Right of Ontario (1986), 26 D.L.R. (4th) 41 (Ont. Div. Ct.)). 80 Thus, it is against this backdrop that we must read the following comments made by Lamer C.J. in Schachter, supra, at p. 720: An individual remedy under s. 24(1) of the Charter will rarely be available in conjunction with an action under s. 52 of the Constitution Act, 1982. Ordinarily, where a provision is declared unconstitutional and immediately struck down pursuant to s. 52, that will be the end of the matter. No retroactive s. 24 remedy will be available. [Emphasis added.] 81 In short, although it cannot be asserted that damages may never be obtained following a declaration of unconstitutionality, it is true that, as a rule, an action for damages brought under s. 24(1) of the Charter cannot be combined with an action for a declaration of invalidity based on s. 52 of the Constitution Act, 1982. 82 Applying these principles to the situation before us, it is clear that the respondents are not entitled to damages merely because the enactment of Bill 7 was unconstitutional. On the other hand, I do not find any evidence that might suggest that the government of New Bruns- wick acted negligently, in bad faith or by abusing its powers. Its knowledge of the unconstitutionality of eliminating the office of su- pernumerary judge has never been established.[...] See also Ward v. Vancouver (City), 2010 SCC 27, [2010] 2 S.C.R. 28 (S.C.C.); paras. 27, 32, 39-41; Schachter v. Canada, supra, para. 89. 130 In the case at bar, the Applicant has failed to demonstrate any bad faith or negligence on the part of the Legislature. A declaration of invalidity would have been made absent the intervening proclamation of the Amended Act. This is not an appropriate case for an award of damages. 352 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

131 I have already addressed the Applicant’s request to have his property and asset settlement reopened, as above. 132 I next turn to the Applicant’s request for a declaration of parentage and guardianship. The Notice of Motion filed by the Applicant does not seek a declaration of guardianship, although the Applicant indicated that he was indeed seeking such a declaration in both written and oral argument. As I understand it, the Applicant has already commenced a guardianship application elsewhere before this Court (para. 5(e) of the Appli- cant’s Brief). It is thus not properly before me. 133 I have declined to read in language that will bestow parental status upon the Applicant by operation of law. As discussed, the offending provisions of the FLA have been repealed. The Amended Act clearly takes a more gender neutral/sexual orientation neutral approach to who may be considered a “spouse” and, correspondingly, an intended parent under ss. 8.1 and 8.2. Questions of whether the Amended Act adequately provides for parental status outside of the heterosexual norm must be left for another day. While the Amended Act governs on a go-forward basis, it is the former FLA which established parentage in the matter at bar. 134 Both the Applicant and his former partner, Mr. R. are left in a gap created by the Legislature. The provisions of FLA establishing parentage by intent is not available to gay male couples under s. 13. While this section has been repealed, the Amended Act does not operate to retroactively establish parentage of a child who is now over eight years old. 135 The Ontario Court of Appeal in A. (A.) v. B. (B.), supra, confirmed the ability to utilize its parens patriae jurisdiction to bestow a declaration of parentage where it would be in the best interest of the child and where a legislative gap otherwise existed. In so doing, the Court held as follows: [emphasis added by underlining] 27 The court’s inherent parens patriae jurisdiction may be applied to rescue a child in danger or to bridge a legislative gap. This is not a case about a child being in danger. If the parens patriae authority were to be exercised it would have to be on the basis of a legislative gap. 28 The application judge held that the court’s parens patriae authority was not available to make the declaration in favour of A.A., although he appeared to accept that such an order would be in the best interests of the child. In his view, any gap was deliberate and the court was effectively being asked to legislate because of a perception that the legislation was under-inclusive. The application judge was also concerned about the potential impact on other children if other H. (D.W.) v. R. (D.J.) S.M. Bensler J. 353

persons, such as stepparents or members of a child’s extended family, came forward seeking declarations of parenthood. 29 I take a different view of the exercise of the parens patriae jurisdiction. The Supreme Court of Canada has considered this jurisdiction on several occasions, in particular in Beson v. Director of Child Welfare for Newfoundland, [1982] 2 S.C.R. 716 and E. (Mrs) v. Eve., [1986] 2 S.C.R. 388 (S.C.C.). La Forest J. reviewed the history of the parens patriae jurisdiction at length in Eve. He concluded at p. 426 with the following statement: As Lord MacDermott put it in J. v. C., [1970] A.C. 668, at p. 703, the authorities are not consistent and there are many twists and turns, but they have inexorably “moved towards a broader discretion, under the impact of changing social conditions and the weight of opinion ....” In other words, the categories under which the jurisdiction can be exercised are never closed. Thus I agree with Latey J. in Re X, supra, [1975] 1 All E.R. 697 at p. 699, that the jurisdiction is of a very broad nature, and that it can be invoked in such matters as custody, protection of property, health problems, religious upbringing and protection against harmful associations. This list, as he notes, is not exhaustive. [emphasis added] 30 The comments of La Forest J. about the broad nature of the parens patriae jurisdiction and the broader discretion under the impact of changing social conditions are particularly apt in this case. However, Eve concerned the court’s jurisdiction to authorize a medical procedure. It was not principally concerned with the court’s jurisdiction to fill a legislative gap. A case somewhat closer to the problem at hand is the Supreme Court’s decision in Beson. In that case, the Director of Child Welfare for Newfoundland removed a child from an adoptive home shortly before the expiration of the probationary residence period required for an adoption. The legislation did not give the potential adoptive parents any right of appeal from the Di- rector’s action taken during the probationary period. Speaking for the court, Wilson J. found that there was accordingly a legislative gap that could be filled by the exercise of the parens patriae jurisdiction. She adopted the following statement from the reasons of Lord Wil- berforce in A. v. Liverpool City Council and another, [1981] 2 All E.R. 385 (H.L.) at 388-89: But in some instances there may be an area of concern to which the powers of the local authority, limited as they 354 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

are by statute, do not extend. Sometimes the local authority itself may invite the supplementary assistance of the court. Then the wardship may be continued with a view to action by the court. The court’s general inherent power is always available to fill gaps or to supplement the powers of the local authority; what it will not do (except by way of judicial review where appropriate) is to supervise the exercise of discretion within the field committed by statute to the local authority [Emphasis added]. 31 The determination of whether a legislative gap exists in this case requires a consideration of whether the CLRA was intended to be a complete code and, in particular, whether it was intended to confine declarations of parentage to biological or genetic relationships. If the CLRA was intended to be confined to declarations of parentage based on biology or genetics, it would be difficult to find that there is a legislative gap, at least as concerns persons with no genetic or biological link to the child. 32 As discussed above, the application judge was of the view that the jurisdiction to make parentage declarations is not confined to biological or genetic relationships. The Alliance for Marriage and Family challenges that proposition. The Alliance points out that s. 1(1) of the CLRA refers to a person being the child of his or her “natural parents”. I agree that the Act favours biological parents. For example, s. 10 gives a court power to order blood tests or DNA tests where it is called upon to determine a child’s parentage. However, the Act does not define parentage solely on the basis of biology. For example, s. 1(2) treats adopting parents as natural parents. Often one or both of the adopting parents will not be the biological parents of the child. Similarly, s. 8 enacts presumptions of paternity that do not all turn upon biology; the obvious example is the presumption of paternity flowing simply from the fact that the father was married to the child’s mother at the time of birth. Further, as Ferrier J. pointed out in T.D.L. v. L.R.L., [1994] O.J. No. 896 (Ont. Gen. Div.) at para. 18, the declaration made under s. 4(1) is not that the applicant is a child’s natural parent, but that he or she is recognized in law to be the father or mother of the child. 136 In A. (A.) v. B. (B.), the Court held that advances in both reproductive technology and societal attitudes created a parenting gap, whereby children of same-sex couples were deprived of the equality status that a declaration of full parentage provides. H. (D.W.) v. R. (D.J.) S.M. Bensler J. 355

137 It is clear that in the case at bar a legislative gap exists. This is evi- denced in the language used in s. 13(2)(b) where the Act expressly allows for parentage based upon intent. Again, establishing parentage by intent is not available to gay male couples under s. 13 of the FLA. I agree with the Court in A. (A.) v. B. (B.) that to find such a legislative gap was deliberate requires assigning a discriminatory intent to the Legislature. I am not prepared to presume such an intent here. 138 While the Amended Act goes some way in addressing parentage in the case of gay males, it does not operate to retroactively effect the established parentage of the child S. Again, a legislative gap continues to exist for an intended parent standing in the place of the Applicant. 139 In the case at bar, Mr. H. acted as one of the primary caregivers to the child S. for the first three years of her life. Baby S. was dependant on Messrs. H. and R. to provide for all of her needs during this period. Both individuals acted as de facto parents towards the child and jointly provided for her necessities of life. It is contrary to the best interests of the child S. to be limited to the legal recognition of a sole parent, Ms. D. There is no other method of correcting for this deprivation outside of the exercise of the parens patriae jurisdiction. I thus declare Mr. H. to be a legal parent of S. 140 In so declaring, I wish to emphasize that the child S. primarily resides with Mr. R. and has done for the last number of years and that Mr. R. has acted as her primary caregiver following separation. Mr. R. has been granted a declaration of guardianship and has all of the rights and responsibilities that accompany such status. Mr. H.’s application for guardianship remains pending before this Court and his rights and responsibilities pertaining to the child S. will be fully determined following that application. Mr. H.’s declaration of parentage does not automatically alter any of the parenting or guardianship arrangements currently in place for the child S. 141 I note that the Amended Act expressly states under both the surrogacy provisions as well as s. 9 (declarations respecting parentage) that no application may be brought if it results in a child having more than two parents. Following this judgment, the child S. will have two legal parents; Ms. D and Mr. H. To date, Mr. R. is not a legal parent to S. Should Mr. R. wish to pursue parental status under the Amended Act, he will be required to challenge the constitutionality of this limitation. This question, however, is left for another day. 356 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

The VSA 142 The Applicant has also alleged that the VSA violates his s. 15 Charter rights by failing to provide for recognition of a non-biological gay male “intended” parent on a birth certificate and seeks an amendment to the registration process under this Act. It is the Applicant who must show that the impugned legislation has infringed his rights. As noted above, the Applicant focussed almost exclusively on the FLA and did not adequately address the provisions of the VSA. He failed to demonstrate any infringement based upon an enumerated or analogous ground before this Court, and as such has failed to demonstrate any violation of his s. 15 Charter rights.

Costs 143 The Applicant is seeking costs of this application on a solicitor and client basis backdated to 2006. 144 The Intervener submits that as an intervener, it is not seeking costs and requests that no costs be ordered against it. It further submits that this is not the proper case for an award of solicitor and client costs. 145 I cannot accept the Intervener’s submission that no costs award should be made in this instance. The law is clear that costs can be awarded against the Province acting as intervener on a constitutional matter: B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 (S.C.C.). It is also clear that the Attorney General can be held liable for costs on matters dealing with constitutional claims: Vriend v. Alberta, supra. 146 Although the Applicant has not been wholly successful, the fact remains that he has had success on the principal issue, namely the constitutional invalidity of the legislation in question. Following the general rule that costs follow the event, I would accordingly award the Applicant’s costs for this application. I wish to make it clear that the costs awarded relate only to those costs connected to the current application regarding the Charter challenge and not to any historic actions or steps pursued by the Applicant. 147 Such costs shall be awarded on a party-and-party basis only. This is not a case for costs on a solicitor and client basis. As our Supreme Court recently restated in Mackin, supra, at para. 86: ...It is established that the question of costs is left to the discretion of the trial judge. The general rule in this regard is that solicitor-client costs are awarded only on very rare occasions, for example when a H. (D.W.) v. R. (D.J.) S.M. Bensler J. 357

party has displayed reprehensible, scandalous or outrageous conduct (Young v. Young, [1993] 4 S.C.R. 3, at p. 134). Reasons of public interest may also justify the making of such an order (Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at p. 80). 148 While I acknowledge that the issues brought forth in this application, which raise serious and important issues involving the definition of family which are of import to society as a whole and not just to the Appli- cant, I find that this alone does not justify a deviation from party-and- party costs. I agree with Osler, J. in Canadian Newspapers Co. v. Canada (Attorney General) (1986), 56 O.R. (2d) 240 (Ont. H.C.) at p. 242: The line is sometimes a fine one but in the present case there can be no doubt that a serious challenge has been made and ably supported and that each of the challengers had a bona fide interest on behalf of itself and on behalf of the public in ascertaining the validity of the legislation. On the other hand, the award of solicitor-and-client costs should not be made in such cases unless some form of misconduct on the part of the unsuccessful party can be found. The legislation herein questioned obviously represents an attempt to balance various interests and although its legislative history makes it apparent that a challenge was expected, there is nothing in the legislation or in the actions of Parliament or of the Government of Canada to invite such an award. While it is desirable that bona fide challenge is not to be dis- couraged by the necessity for the Applicant to bear the entire burden, it is equally desirable that the Crown should not be treated as an un- limited source of funds with the result that marginal applications would be encouraged. 149 It is sufficient to say that the usual kinds of rare or exceptional occasions such as misconduct do not exist here. Nor is this a case where it would be an appropriate exercise of judicial discretion to award costs on a solicitor and client basis. However, while I decline to award indemnity costs, I do find that this is a proper case for an award of costs on an increased scale, having regard to the public interest in such litigation and the complexity of the issues involved. 150 In so ordering I am mindful that the Applicant is a self-represented party who was provided assistance through his McKenzie friend. It is clear that this Court recognizes the granting of costs awards to self-represented litigants: C. (A.R.) v. C. (L.L.), 1999 ABQB 707, 256 A.R. 311 (Alta. Q.B.). Rule 10.31 (5) of the new Alberta Rules of Court provides that in appropriate circumstances, the Court may award costs payable to 358 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

a self-represented litigant of an amount or part of an amount equivalent to the fees specified in Schedule C. 151 While not a case for solicitor and client costs, given the complex nature of this constitutional challenge, and the importance of the issues raised to the public at large, I find that this is the proper case for an award of increased costs. As such, I order costs to be calculated using Column 3 of the tariff, plus all reasonable disbursements. The Applicant shall provide his Bill of Costs to an assessment officer within 30 days of this judgment, unless otherwise agreed to by the parties. Application granted in part.

Appendix A Definitions 1 In this Act, (a) “applicant” means a person who brings an application under this Act; (b) “birth” means birth as defined in the Vital Statistics Act and includes a stillbirth as defined in that Act; (b.1) “birth mother” means a person who gives birth to a child; (c) “child”, except in Part 1 and Part 3, means a person who is under the age of 18 years; (c.1) “conjugal” means marriage-like; (d) “contact order” means an order made under section 35; (e) “court” means the Court of Queen’s Bench or the Provincial Court, as the case may be; (f) repealed 2010 c16 s1(2); (g) “grandparent” means a parent of a person’s parent; (g.1) “marriage” includes a void marriage and a voidable marriage; (h) “Minister” means the Minister determined under section 16 of the Government Organization Act as the Minister responsible for this Act; (i) repealed 2010 c16 s1(2); (j) “parent” means a person determined under Part 1 to be a parent of a child; (k) “parenting order” means an order made under section 32; H. (D.W.) v. R. (D.J.) S.M. Bensler J. 359

(l) “party” means a party as defined in the regulations; (m) “person standing in the place of a parent” means a person described in section 48; (n) “relationship of interdependence” means a relationship of interdependence as defined in the Adult Interdependent Relationships Act; (o) “respondent” means a person against whom proceedings are brought under this Act. 2003 cF 4.5 s1;2005 c10 s2;2010 c16 s1(2)

Part 1 Establishing Parentage

Interpretation 5.1(1) In this Part, (a) “assisted reproduction” means a method of conceiving other than by sexual intercourse; (b) “embryo” means an embryo as defined in the Assisted Human Reproduction Act (Canada); (c) “human reproductive material” means human reproductive material as defined in the Assisted Human Reproduction Act (Canada); (d) “surrogate” means a person who gives birth to a child as a result of assisted reproduction if, at the time of the child’s conception, she intended to relinquish that child to (i) the person whose human reproductive material was used in the assisted reproduction or whose human reproductive material was used to create the embryo used in the assisted reproduction, or (ii) the person referred to in subclause (i) and the person who is married to or in a conjugal relationship of interdependence of some permanence with that person. (2) For the purposes of this Part, if a child is born as a result of assisted reproduction, the child’s conception is deemed to have occurred at the time the procedure that resulted in the implantation of the human reproductive material or embryo was performed. 2010 c16 s1(6) 360 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

Application of Part 6 This Part does not apply to an application under section 13 of the Child, Youth and Family Enhancement Act. 2003 cF-4.5 ss6,114;2003 c16 s117

Rules of parentage 7(1) For all purposes of the law of Alberta, a person is the child of his or her parents. (2) The following persons are the parents of a child: (a) unless clause (b) or (c) applies, his or her birth mother and biological father; (b) if the child was born as a result of assisted reproduction, a person identified under section 8.1 to be a parent of the child; (c) a person specified as a parent of the child in an adoption order made or recognized under the Child, Youth and Fam- ily Enhancement Act. (3) The relationship of parent and child, and the kindred relationships flowing from that relationship, shall be determined in accordance with this Part. (4) A person who donates human reproductive material or an embryo for use in assisted reproduction without the intention of using the material or embryo for his or her own reproductive use is not, by reason only of the donation, a parent of a child born as a result. (5) A person who was married to or in a conjugal relationship of interdependence of some permanence with a surrogate at the time of the child’s conception is not a parent of the child born as a result of the assisted reproduction. (6) All distinctions between the status of a child born inside marriage and a child born outside marriage are abolished. 2003 cF-4.5 s7;2010 c16 s1(7)

Presumption of parentage — biological father 8(1) For the purposes of section 7(2)(a), unless the contrary is proven on a balance of probabilities, a male person is presumed to be the H. (D.W.) v. R. (D.J.) S.M. Bensler J. 361

biological father of a child and is recognized in law to be a parent of a child in any of the following circumstances: (a) he was married to the birth mother at the time of the child’s birth; (b) he was married to the birth mother by a marriage that within 300 days before the birth of the child ended by (i) death, (ii) decree of nullity, or (iii) judgment of divorce; (c) he married the birth mother after the child’s birth and has acknowledged that he is the father; (d) he cohabited with the birth mother for at least 12 consecutive months during which time the child was born and he has acknowledged that he is the father; (e) he cohabited with the birth mother for at least 12 consecutive months and the period of cohabitation ended less than 300 days before the birth of the child; (f) he is registered as the parent of the child at the joint request of himself and the birth mother under the Vital Statistics Act or under similar legislation in a province or territory other than Alberta; (g) he has been found by a court of competent jurisdiction in Canada to be the father of the child for any purpose. (2) Where circumstances exist that give rise to a presumption under subsection (1) that more than one male person might be the father of a child, no presumption as to parentage may be made. (3) Subsection (1) does not apply in the case of a child born as a result of assisted reproduction. 2003 cF-4.5 s8;2010 c16 s1(8);2010 c16 s1(8)

Assisted reproduction 8.1(1) In this section and section 8.2, (a) a reference to the provision of human reproductive material by a person means the provision of the person’s own human reproductive material to be used for his or her own reproductive purposes; 362 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

(b) a reference to the provision of an embryo by a person means the provision of an embryo created using the person’s own human reproductive material to be used for his or her own reproductive purposes. (2) If a child is born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by a male person only, the parents of the child are (a) unless clause (b) or (c) applies, the birth mother and the male person; (b) if the birth mother is a surrogate and, under section 8.2(6), she is declared not to be a parent and the male person is declared to be a parent, the male person and a person who (i) was married to or in a conjugal relationship of interdependence of some permanence with the male person at the time of the child’s conception, and (ii) consented to be a parent of a child born as a result of assisted reproduction and did not withdraw that consent before the child’s conception; (c) unless section 8.2(9) applies, if the birth mother is a surrogate but does not consent to the application under section 8.2, the birth mother only. (3) If a child is born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by a female person only, the parents of the child are (a) unless clause (b) or (c) applies, the birth mother and a person who (i) was married to or in a conjugal relationship of interdependence of some permanence with the birth mother at the time of the child’s conception, and (ii) consented to be a parent of a child born as a result of assisted reproduction and did not withdraw that consent before the child’s conception; (b) if the birth mother is a surrogate and, under section 8.2(6), she is declared not to be a parent and the female person is H. (D.W.) v. R. (D.J.) S.M. Bensler J. 363

declared to be a parent, the female person and a person who (i) was married to or in a conjugal relationship of interdependence of some permanence with the female person at the time of the child’s conception, and (ii) consented to be a parent of a child born as a result of assisted reproduction and did not withdraw that consent before the child’s conception; (c) unless section 8.2(9) applies, if the birth mother is a surrogate but does not consent to the application under section 8.2, the birth mother only. (4) If a child is born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by both a male person and a female person, the parents of the child are (a) unless clause (b) or (c) applies, the birth mother and the male person; (b) if the birth mother is a surrogate and, under section 8.2(6), she is declared not to be a parent and the male person and female person are each declared to be a parent, the male person and the female person; (c) unless section 8.2(9) applies, if the birth mother is a surrogate but does not consent to the application under section 8.2, the birth mother only. (5) If a child is born as a result of assisted reproduction without the use of human reproductive material or an embryo provided by a person referred to in subsection (1)(a) or (b), the parents of the child are the birth mother and a person who (a) was married to or in a conjugal relationship of interdependence of some permanence with the birth mother at the time of the child’s conception, and (b) consented to be a parent of a child born as a result of assisted reproduction and did not withdraw that consent before the child’s conception. (6) Unless the contrary is proven, a person is presumed to have consented to be a parent of a child born as a result of assisted repro- 364 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

duction if the person was married to or in a conjugal relationship of interdependence of some permanence with, (a) in the case of a child born in the circumstances referred to in subsection (2), the male person referred to in that subsection, (b) in the case of a child born in the circumstances referred to in subsection (3), the female person referred to in that subsection, or (c) in the case of a child born in the circumstances referred to in subsection (5), the birth mother. 2010 c16 s1(9)

Surrogacy 8.2(1) An application may be made to the court for a declaration that (a) a surrogate is not a parent of a child born to the surrogate as a result of assisted reproduction, and (b) a person whose human reproductive material or embryo was provided for use in the assisted reproduction is a parent of that child. (2) Subject to subsection (3), the following persons may make an application under subsection (1): (a) the surrogate; (b) a person referred to in subsection (1)(b); (c) a person who was, at the time of the child’s conception, married to or in a conjugal relationship of interdependence of some permanence with a person referred to in subsection (1)(b). (3) If a child is born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by both a male person referred to in subsection (1)(b) and a female person referred to in subsection (1)(b), only the surrogate, the male person or the female person may make an application under subsection (1). (4) An application under subsection (1) may not be commenced more than 30 days after the date of the child’s birth unless the court allows a longer period. H. (D.W.) v. R. (D.J.) S.M. Bensler J. 365

(5) Unless the court directs otherwise, the following persons must, in accordance with the regulations, be served with notice of the application: (a) if a surrogate brings an application under subsection (1), (i) a person referred to in subsection (1)(b), (ii) unless subsection (3) applies, a person who was, at the time of the child’s conception, married to or in a conjugal relationship of interdependence of some permanence with a person referred to in subsection (1)(b), and (iii) any other person as the court considers appropriate; (b) if a person referred to in subsection (1)(b) brings an application under subsection (1), (i) the surrogate, (ii) unless subsection (3) applies, a person who was, at the time of the child’s conception, married to or in a conjugal relationship of interdependence of some permanence with a person referred to in subsection (1)(b), (iii) if subsection (3) applies, the other person referred to in subsection (1)(b), and (iv) any other person as the court considers appropriate; (c) if a person who was, at the time of the child’s conception, married to or in a conjugal relationship of interdependence of some permanence with a person referred to in subsection (1)(b) brings an application, (i) the person referred to in subsection (1)(b), (ii) the surrogate, and (iii) any other person as the court considers appropriate. (6) The court shall make the declaration applied for if the court is satisfied that (a) the child was born as a result of assisted reproduction with the use of human reproductive material or an embryo provided by a person referred to in subsection (1)(b), and (b) the surrogate consents, in the form provided for by the regulations, to the application. 366 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

(7) A person who is declared to be a parent of the child under subsection (6) and any person who, as a result of that declaration, is a parent of the child under section 8.1 are deemed to be the parents at and from the time of the birth of the child. (8) Any agreement under which a surrogate agrees to give birth to a child for the purpose of relinquishing that child to a person (a) is not enforceable, (b) may not be used as evidence of consent of the surrogate under subsection (6)(b), and (c) may be used as evidence of consent for the purposes of section 8.1(2)(b)(ii) or (3)(b)(ii). (9) The court may waive the consent required under subsection (6)(b) if (a) the surrogate is deceased, or (b) the surrogate cannot be located after reasonable efforts have been made to locate her. (10) If the court makes a declaration under subsection (6), the court shall identify in the declaration any person referred to in section 8.1(2)(b)(i) and (ii) or (3)(b)(i) and (ii), as the case may be, who is a parent as a result of that declaration. (11) The court has jurisdiction under this section if the child is born in Alberta. (12) An application may not be made under this section if (a) the child has been adopted, or (b) the declaration sought would result in the child having more than 2 parents. 2010 c16 s1(9)

Declaration respecting parentage 9(1) If there is a dispute or any uncertainty as to whether a person is or is not a parent of a child under section 7(2)(a) or (b), the following persons may apply to the court for a declaration that the person is or is not the parent of a child: (a) a person claiming to be a parent of the child; (b) a person claiming not to be a parent of the child; (c) the child; H. (D.W.) v. R. (D.J.) S.M. Bensler J. 367

(d) a parent of the child, if the child is under the age of 18 years; (e) a guardian of the child; (f) a person who has the care and control of the child. (2) This section does not apply where a child is born to a surrogate who has consented to an application under section 8.2. (3) If the court finds that a living person is or is not a parent of a child, the court may make a declaration to that effect. (4) If the court finds that a deceased person is or is not a parent of a child conceived before that person’s death, the court may make a declaration to that effect. (5) In making a declaration under this section, the court shall give effect to any applicable presumption set out in section 8 and any applicable provision of section 8.1. (6) The court has jurisdiction under this section if (a) the child is born in Alberta, or (b) an alleged parent resides in Alberta. (7) An application or declaration may not be made under this section if (a) the child has been adopted, or (b) the declaration sought would result in the child having more than 2 parents. 2003 cF-4.5 s9;2010 c16 s1(10) 368 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

[Indexed as: Rozak Estate v. Demas] Brad Brogden, Administrator Ad Litem of the Estate of Brooklyn Alyssa Rozak (Plaintiff) and Michael Demas, Carl Blashko, Darren Neilson, John Doe, Capital Health, operating a hospital known as The University of Alberta Hospital, Caritas Health Group, operating a hospital known as The Grey Nuns Hospital and the Governors of the University of Alberta (Defendants) Alberta Court of Queen’s Bench Docket: Edmonton 0503-17780 2011 ABQB 239 R.A. Graesser J. Heard: February 23, 2011 Judgment: April 7, 2011* Civil practice and procedure –––– Discovery — Examination for discovery — Conduct of examination — Objecting and refusing to answer –––– Plaintiff took his late wife, B, to hospital because of concerns for her mental well-being and safety — Defendant doctors saw B and discharged her later that evening — B committed suicide shortly after — Plaintiff served statement of claim, and served amended statement of claim when he discovered that he had sued wrong doctor — Plaintiff then sought to amend amended statement of claim — Doctors applied to compel answers to objected-to undertakings, and while plaintiff was ordered to provide answers to two, master declined to order answers to rest — Doctors appealed — Plaintiff cross-appealed — Appeal allowed in part — Cross-appeal allowed in part — Master erred in law in declining to order plaintiff to answer four undertaking requests — However, scope of inquiries were further limited — Subject to privilege issues and relevance issues, it was appropriate to require plaintiff to inform himself as to steps taken on his behalf to identify individuals who may have been involved in B’s treatment — Information sought related to important issue in application — Requesting information from counsel was not onerous and would likely be significant in determining application.

*A corrigendum issued by the court on April 11, 2011 has been incorporated herein. Rozak Estate v. Demas 369

Civil practice and procedure –––– Discovery — Discovery of documents — Privileged document — Solicitor-client privilege –––– Plaintiff took his late wife, B, to hospital because of concerns for her mental well-being and safety — Defendant doctors saw B and discharged her later that evening — B committed suicide shortly after — Plaintiff served statement of claim, and served amended statement of claim when he discovered that he had sued wrong doctor — Plain- tiff then sought to amend amended statement of claim — Doctors applied to compel answers to objected-to undertakings, and while plaintiff was ordered to provide answers to two, master declined to order answers to rest — Doctors appealed — Plaintiff cross-appealed — Appeal allowed in part — Cross-appeal allowed in part — Master erred in law in declining to order plaintiff to answer four undertaking requests — However, scope of inquiries were further limited — It was not improper to ask what steps solicitors took from time they were retained until relevant date — Plaintiff brought diligence into issue by applying to add doctors as defendants — Further, privilege was waived relating to answer of when plaintiff told his counsel that B was treated by male resident — Plaintiff waived privilege over that communication by putting his diligence into issue. Civil practice and procedure –––– Discovery — Discovery of documents — Privileged document — Documents prepared in contemplation of litigation –––– Plaintiff took his late wife, B, to hospital because of concerns for her mental well-being and safety — Defendant doctors saw B and discharged her later that evening — B committed suicide shortly after — Plaintiff served statement of claim, and served amended statement of claim when he discovered that he had sued wrong doctor — Plaintiff then sought to amend amended statement of claim — Doctors applied to compel answers to objected-to undertakings, and while plaintiff was ordered to provide answers to two, master declined to order answers to rest — Doctors appealed — Plaintiff cross-appealed — Appeal allowed in part — Cross-appeal allowed in part — Master erred in law in declining to order plaintiff to answer four undertaking requests — However, scope of inquiries were further limited — It was relevant to know what resources plaintiff had readily available, or what resources he obtained for purposes of determining appropriate parties, during relevant time frame — There was no valid objection to plaintiff being asked to enquire of his solicitors what resources they had in their offices to ascertain doctors’ identities — If any materials were obtained for purpose of litigation, privilege was waived by plaintiff putting his due diligence in issue. Cases considered by R.A. Graesser J.: Alberta Treasury Branches v. Leahy (1999), 1999 ABQB 829, 1999 Carswell- Alta 1027, (sub nom. Alberta (Treasury Branches) v. Leahy) 254 A.R. 263, [1999] A.J. No. 1281 (Alta. Q.B.) — referred to Alberta Wheat Pool v. Estrin (1986), 1986 CarswellAlta 272, 49 Alta. L.R. (2d) 176, [1987] 2 W.W.R. 532, (sub nom. Alberta Wheat Pool v. Dawson 370 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

Resources Ltd. (No. 1)) 75 A.R. 348, 14 C.P.C. (2d) 242, [1986] A.J. No. 1165 (Alta. Q.B.) — referred to Alberta Wheat Pool v. Estrin (1987), 17 C.P.C. (2d) xxxix (note) (Alta. C.A.) — referred to Bland v. Canada (National Capital Commission) (1989), 29 F.T.R. 232, 1989 CarswellNat 170 (Fed. T.D.) — referred to Blank v. Canada (Department of Justice) (2006), 2006 CarswellNat 2704, 2006 CarswellNat 2705, 47 Admin. L.R. (4th) 84, 40 C.R. (6th) 1, 2006 SCC 39, (sub nom. Blank v. Canada (Minister of Justice)) 352 N.R. 201, 270 D.L.R. (4th) 257, 51 C.P.R. (4th) 1, (sub nom. Blank v. Canada (Minister of Jus- tice)) [2006] 2 S.C.R. 319, [2006] S.C.J. No. 39 (S.C.C.) — referred to Bruno v. Canada (Attorney General) (2003), 2003 CF 1281, 2003 CarswellNat 5030, 2003 FC 1281, 2003 CarswellNat 3375, [2003] F.C.J. No. 1604 (F.C.) — referred to De Shazo v. Nations Energy Co. (2005), 48 Alta. L.R. (4th) 25, 2005 ABCA 241, 2005 CarswellAlta 957, 367 A.R. 267, 346 W.A.C. 267, 256 D.L.R. (4th) 502, [2005] A.J. No. 856 (Alta. C.A.) — followed Descˆoteaux c. Mierzwinski (1982), 1982 CarswellQue 13, [1982] 1 S.C.R. 860, 28 C.R. (3d) 289, 1 C.R.R. 318, 44 N.R. 462, 141 D.L.R. (3d) 590, 70 C.C.C. (2d) 385, 1982 CarswellQue 291, [1982] S.C.J. No. 43 (S.C.C.) — referred to Dow Chemical Canada Inc. v. Shell Chemicals Canada Ltd. (2008), 2008 CarswellAlta 1685, 459 A.R. 68, 97 Alta. L.R. (4th) 182, 2008 ABQB 671 (Alta. Master) — followed Ed Miller Sales & Rentals Ltd. v. Caterpillar Tractor Co. (1981), 1981 CarswellAlta 267, [1981] 4 W.W.R. 760 (Alta. Q.B.) — referred to Ed Miller Sales & Rentals Ltd. v. Caterpillar Tractor Co. (1992), 3 Alta. L.R. (3d) 210, [1992] 5 W.W.R. 531, 1992 CarswellAlta 86, [1992] A.J. No. 564 (Alta. Q.B.) — referred to Hudson Bay Mining & Smelting Co. v. Cummings (2006), 2006 MBCA 98, 2006 CarswellMan 295, 383 W.A.C. 75, 208 Man. R. (2d) 75, 272 D.L.R. (4th) 419, 51 Admin. L.R. (4th) 1, 36 C.P.C. (6th) 10, [2007] 4 W.W.R. 197, [2006] M.J. No. 304 (Man. C.A.) — referred to Marion v. Wawanesa Mutual Insurance Co. (2004), [2004] I.L.R. I-4317, 354 A.R. 12, 329 W.A.C. 12, 2004 ABCA 213, 2004 CarswellAlta 900, [2004] 9 W.W.R. 533, 27 Alta. L.R. (4th) 201, 11 C.C.L.I. (4th) 52 (Alta. C.A.) — referred to Merck Frosst Canada Inc. v. Canada (Minister of Health) (1997), 1997 Car- swellNat 2661, (sub nom. Merck Frosst Canada Inc. v. Canada (Minister of National Health & Welfare)) 146 F.T.R. 249, 80 C.P.R. (3d) 550, [1997] F.C.J. No. 1847 (Fed. T.D.) — considered Rozak Estate v. Demas 371

Moseley v. Spray Lakes Sawmills (1980) Ltd. (1996), 39 Alta. L.R. (3d) 141, 135 D.L.R. (4th) 69, 184 A.R. 101, 122 W.A.C. 101, 48 C.P.C. (3d) 221, 1996 CarswellAlta 345, [1996] A.J. No. 380 (Alta. C.A.) — referred to Petro Can Oil & Gas Corp. v. Resource Service Group Ltd. (1988), 59 Alta. L.R. (2d) 34, 32 C.P.C. (2d) 50, 90 A.R. 220, 1988 CarswellAlta 65, [1988] A.J. No. 336 (Alta. Q.B.) Petro Can Oil & Gas Corp. v. Resource Service Group Ltd. (1988), 32 C.P.C. (2d) xlvi (note) (Alta. C.A.) — referred to Pritchard v. Ontario (Human Rights Commission) (2004), 2004 SCC 31, 2004 CarswellOnt 1885, 2004 CarswellOnt 1886, 12 Admin. L.R. (4th) 171, 47 C.P.C. (5th) 203, 72 O.R. (3d) 160 (note), 49 C.H.R.R. D/120, 2004 C.L.L.C. 230-021, [2004] 1 S.C.R. 809, 19 C.R. (6th) 203, 33 C.C.E.L. (3d) 1, [2004] S.C.J. No. 16, REJB 2004-61849 (S.C.C.) — referred to R. v. Card (2002), 2002 CarswellAlta 746, 2002 ABQB 537, 3 Alta. L.R. (4th) 92, 307 A.R. 277, [2002] A.J. No. 737 (Alta. Q.B.) — referred to R. v. Fosty (1991), [1991] 6 W.W.R. 673, (sub nom. R. v. Gruenke) 67 C.C.C. (3d) 289, 130 N.R. 161, 8 C.R. (4th) 368, 75 Man. R. (2d) 112, 6 W.A.C. 112, (sub nom. R. v. Gruenke) [1991] 3 S.C.R. 263, 7 C.R.R. (2d) 108, 1991 CarswellMan 206, 1991 CarswellMan 285, [1991] S.C.J. No. 80, EYB 1991- 67160 (S.C.C.) — referred to Resortport Development Corp. v. Alberta Racing Corp. (2004), 2004 Carswell- Alta 1880 (Alta. Q.B.) — referred to Resortport Development Corp. v. Alberta Racing Corp. (2005), 2005 ABCA 49, 2005 CarswellAlta 143 (Alta. C.A.) — referred to Smith v. Jones (1999), 132 C.C.C. (3d) 225, 169 D.L.R. (4th) 385, 22 C.R. (5th) 203, (sub nom. Jones v. Smith) 60 C.R.R. (2d) 46, (sub nom. Jones v. Smith) 236 N.R. 201, 1999 CarswellBC 590, 1999 CarswellBC 591, [1999] 1 S.C.R. 455, (sub nom. Jones v. Smith) 120 B.C.A.C. 161, (sub nom. Jones v. Smith) 196 W.A.C. 161, 62 B.C.L.R. (3d) 209, [1999] 8 W.W.R. 364, 1999 SCC 16, [1999] S.C.J. No. 15 (S.C.C.) — referred to True Blue Cattle Co. v. Toronto Dominion Bank (2004), 12 C.C.L.I. (4th) 256, 49 C.P.C. (5th) 153, 360 A.R. 117, 2004 ABQB 145, 2004 CarswellAlta 279 (Alta. Q.B.) — referred to 155569 Canada Ltd. v. 248524 Alberta Ltd. (1989), 99 A.R. 100, 1989 CarswellAlta 505 (Alta. Master) — referred to Statutes considered: Limitations Act, R.S.A. 2000, c. L-12 Generally — referred to s. 3(1)(a) — considered s. 6(1) — considered s. 6(4)(b) — considered s. 6(5)(b) — considered 372 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

Rules considered: Alberta Rules of Court, Alta. Reg. 390/68 R. 314(2) — considered Alberta Rules of Court, Alta. Reg. 124/2010 Generally — referred to Pt. 5 — referred to R. 6.7 — considered R. 6.8 — referred to

APPEAL by doctors from decision regarding application to compel answers to undertakings; CROSS-APPEAL by plaintiff from decision regarding application to compel answers to undertakings.

Philip Kirman for Plaintiff David Hawreluk, Alison Archer for Applicants, Kevin Neilson, Lara Ostolosky, Omar Din

R.A. Graesser J.: I. Introduction 1 This is an application by Drs. Neilson, Ostolosky and Din (the “doctors”) by way of an appeal from the decision of Master Wachowich dated June 1, 2010 dismissing their application to compel the Plaintiff to answer certain objected-to undertakings from his examination for discovery. Mr. Brogden cross-appeals Master Wachowich’s decision with respect to the two objected-to undertakings he was required to answer. 2 The application before Master Wachowich turned on relevance, solicitor - client privilege and solicitor’s work product privilege.

II. Background 3 The Plaintiff is the widower of the late Brooklyn Alissa Rozak and is the Administrator Ad Litem of her estate. 4 Ms. Rozak had been admitted to the Grey Nuns Hospital in Edmonton on May 30, 2005 for psychiatric observation and treatment. She was discharged on June 3, 2005. Later that day, she was taken to the University of Alberta Hospital by her husband because of concerns for her mental well-being and safety. 5 At the University Hospital, she was initially seen by Dr. Neilson, an emergency doctor. He concluded that she should have a psychiatric consultation, and she was then seen by a resident, Dr. Din, and the staff psychiatrist, Dr. Ostolsky. Rozak Estate v. Demas R.A. Graesser J. 373

6 Following the psychiatric consultation, Ms. Rozak was discharged later that evening. 7 On June 5, 2005, Ms. Rozak committed suicide. 8 Mr. Brogden sought legal advice in August, 2005 and signed consents for the release of Ms. Rozak’s medical records and information. Mr. Brodgen’s counsel wrote the University Hospital on November 8, 2005 requesting patient files and records. 9 The University Hospital records were provided to counsel under cover of a November 14, 2005 letter. The records clearly show that “Dr. Neilson” requested a medical consultation from “Dr. Ostolosky” on June 3, 2005. 10 On the Outpatient Chart, there is a signature under “Doctor” but no printed name. Dr. Kevin Neilson has deposed that is his signature. Whether his signature is legible is in issue on the underlying application. 11 On a similar form in the records, there are notes and above “Consult- ant’s Signature” is a signature and the printed name “Omar Din”. Whether either the signature or printed name is legible is in issue on the underlying application. 12 A Statement of Claim was issued on June 1, 2007, naming Dr. Michael Demas, the University Hospital and the Grey Nuns Hospital. It was amended later that day to include Drs. Carl Blashko and Darren Neilson. The action has been since discontinued against Dr. Darren Neilson. 13 The Statement of Claim was not immediately served. It was served on the University Hospital on April 24, 2008 and on Dr. Darren Neilson on May 6, 2008. 14 Shortly after the University Hospital had been served, in-house counsel notified Mr. Brogden’s counsel that the wrong Dr. Neilson had been sued. Dr. Darren Neilson was an emergency doctor at the Grey Nuns Hospital, and had no dealings at all with Ms. Rozak. Rather, his brother, Dr. Kevin Neilson, an emergency doctor at the University Hospital, was the emergency doctor who had seen Ms. Rozak on June 3, 2005. 15 Following that correspondence, Mr. Brogden’s counsel had the Amended Statement of Claim served on Dr. Kevin Neilson on July 2, 2008, along with a letter advising Dr. Kevin Neilson of Mr. Brogden’s intention to amend the Statement of Claim to substitute him for his brother Darren as a defendant. 374 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

16 On November 3, 2008, Dr. Ostolosky was served with the Amended Statement of Claim, along with a letter advising her of Mr. Brogden’s intention to amend the Statement of Claim to add her as a defendant. 17 An application was filed on November 14, 2008 on behalf of Mr. Brogden to amend the Amended Statement of Claim by substituting Dr. Kevin Neilson for Dr. Darren Neilson and adding Dr. Ostolosky. 18 Mr. Brogden had Dr. Din served with the Amended Statement of Claim in mid-February, 2009 along with notice that he intended to add Dr. Din as a defendant. 19 Drs. Kevin Neilson, Ostolosky and Din have objected to the amendments to the Amended Statement of Claim and have raised the Limita- tions Act, R.S.A. 2000, Ch. L-12. 20 Mr. Brogden was cross-examined on his affidavit in support of his application for the amendments, and a number of undertakings were requested but refused. 21 Following the refusals, counsel for the doctors applied to compel answers to the objected-to undertakings. Master Wachowich gave oral reasons for decision and ordered that Mr. Brogden provide answers to two of the undertakings. He declined to order answers to the rest. 22 The doctors appeal the dismissal of some of the requested undertakings; Mr. Brogden cross-appeals with respect to the two he was required to answer. Over the course of preparing for this appeal, the parties have reduced the number of undertakings in dispute.

III. Standard of Review 23 The parties are agreed that the issues in the appeal are questions of law, and thus attract a correctness standard of review. Rozak Estate v. Demas R.A. Graesser J. 375

IV. Undertakings in Dispute 24 The following undertakings are the ones still in dispute: Undertaking 6: Advise if there was more information received or obtained to determine that Carl Blashko and Darren Neilson should be added as defendants prior to filing the Amended Statement of Claim. Undertaking 8: Make inquiries and determine what steps were taken on Brad Bogden’s behalf to determine why Darren Neilson was named as defendant and what further determinations, if any, were made to confirm that he was properly named a defendant between June 4, 2005 and June 1, 2008. Undertaking 9: Make inquiries to determine what steps were taken on behalf of Brad Brogden between June 4, 2005 and June 1, 2008 to determine whether any other physician should be named as defendants in the lawsuit, particularly Dr. Ostolosky and Dr. Din. Undertaking 10: Make inquiries to determine whether or not there was anything preventing Brad Brogden’s counsel from contacting the Uni- versity of Alberta Hospital at any time between the time they were retained in August of 2005 until June 1, 2008 to ake inquiries with respect to the names of the physicians that were involved in caring for Ms. Rozak on June 3, 2005. Undertaking 13: Make inquiries of Brad Brogden’s counsel as to what medical directories are available in their office and did have available in their office between August of 2005 and June 1, 2008. Undertaking 16: Make inquiries and determine when it was that Brad Bogden first advised counsel that he had a recollection of Ms. Rozak being seen by an intern or resident of the middle eastern descent. 376 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

Undertaking 22: Make inquiries with Brad Bogden’s counsel to determine if there was something preventing him from determining or recognizing that there was a resident involved in Ms. Rozak’s care at any point after they received the records on November 16, 2005. 25 The Master ordered answers to 13 and 16, and refused to order answers to 6, 8, 9, 10 and 22.

V. Issues 26 This appeal only deals with the objected-to undertakings, and not the underlying application to amend the Amended Statement of Claim. 27 The issues on this appeal relate to whether the undertakings may be directed on questioning on an affidavit, the relevance of the requested undertakings, and whether Mr. Brogden should be required to answer some or all of them having regard to solicitor and client privilege, as well as his solicitor’s litigation and work product privilege. 28 Rule 6.7 deals with questioning. It provides: A person who makes an affidavit in support of an application or in response or reply to an application may be questioned, under oath, on the affidavit by a person adverse in interest on the application, and (a) rules 6.16 to 6.20 apply for the purposes of this rule, and (b) the transcript of the questioning must be filed by the questioning party. 29 Old Rule 314(2), which was in effect when the questioning took place, provided: The deponent may be required to attend in the same manner as a party being examined for discovery and the procedure on his examination is subject to the same Rules, so far as they are applicable, as the Rules that apply to the examination for discovery of party. 30 Having regard to the foundational rules, I see no purpose or basis to change the scope of questioning on an affidavit in support of an application: questions relevant and material to the underlying application will be permitted and if refused, will be ordered to be answered: Ed Miller Sales & Rentals Ltd. v. Caterpillar Tractor Co., [1981] 4 W.W.R. 760 (Alta. Q.B.), at paras. 4 and 6 155569 Canada Ltd. v. 248524 Alberta Ltd. (1989), 99 A.R. 100 (Alta. Master) at paras. 11-13 Rozak Estate v. Demas R.A. Graesser J. 377

Bland v. Canada (National Capital Commission), 1989 CarswellNat 170 (Fed. T.D.), at para. 16 Dow Chemical Canada Inc. v. Shell Chemicals Canada Ltd. (2008), 97 Alta. L.R. (4th) 182 (Alta. Master) at para. 5 31 Repetitive and abusive questions have never been allowed; questioning must now be both relevant and material to the application having regard to the narrowing of the scope of questioning generally from “touching the matters in question” to “relevant and material”. 32 Nevertheless, to determine relevance and materiality, the issues on the underlying application must be reviewed.

VI. Undertakings on Questioning on Affidavits 33 The threshold issue on this application is whether (or the extent to which) an affiant may be required to undertake to provide further evidence or documents. There is much authority to suggest that an affiant may not be required to inform him or herself following the questioning on questions that could not be answered - following up on answers “I don’t know”. 34 Merck Frosst Canada Inc. v. Canada (Minister of Health), 1997 Car- swellNat 2661 (Fed. T.D.) (holds that “absence of knowledge is an acceptable answer; the witness cannot be required to inform him or herself” (at para. 4). 35 That is an often-quoted statement, and has been followed in Alberta Treasury Branches v. Leahy, 1999 CarswellAlta 1027 (Alta. Q.B.), and Bruno v. Canada (Attorney General), 2003 CarswellNat 3375 (F.C.). 36 However, there are also a number of cases in Alberta where affiants have been require to inform themselves, and provide answers following the questioning. 37 The most detailed analysis of undertakings on questioning on affidavits is Master Prowse’s decision in Dow Chemical Canada Inc. v. Shell Chemicals Canada Ltd., 2008 ABQB 671 (Alta. Master). He concluded at para. 5: After a review of the relevant case law, I have come to the conclusion that the court should be reluctant to direct that undertakings be provided by a party proffering a deponent who is unable to answer all questions put to the deponent during a cross-examination. It should be more difficult to have undertakings directed on a cross-examination than at examinations for discovery. Undertakings should only be directed on a cross-examination where: 378 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

(a) the deponent has referred to information or documents in the affidavit, or could only have made the assertions contained in the affidavit after having reviewed the information or documents being sought, or (b) the undertakings relate to an important issue in the application, and the provision of such information: (i) would not be overly onerous, and (ii) would likely significantly help the court in the determination of the application. 38 I agree with his conclusions. The statement that an affiant cannot be required to inform him or herself is not the law in Alberta. An affiant being questioned is in a similar position to that of a witness being cross- examined at trial. Witnesses are expected to have taken reasonable steps to inform him or herself as to the subject matter on which they are expected to testify. They are expected to bring with them all records in their possession or control which are relevant to the issues in the lawsuit. They may be cross-examined not only on their evidence in chief, but on any other matter within their knowledge. 39 One key difference is that witnesses at trial does not usually have the ability to inform themselves during cross-examination on questions they are unable to readily answer. That may work to their great disadvantage, as a witness who is unable to provide an answer to something reasonably expected to be in his or her knowledge may be seen as unprepared, unhelpful, unintelligent, or even untruthful. 40 Because questioning on affidavits generally takes place some time before the underlying application is heard, an affiant does have the opportunity to shore up his or her testimony by providing a further affidavit. Where the affiant has knowledge or access to knowledge which may be helpful to the other side, there is no policy reason to have a bar against requiring the affiant to obtain the answer for a question that was properly put to the affiant on questioning. 41 That being said, I am also in agreement with Master Prowse that the court should be slow to direct that an affiant be directed to inform him or herself after the questioning and provide further answers, and that generally witnesses being questioned on an affidavit are treated differently (i.e. with greater restraint as to undertakings) than witnesses being questioned under Part 5 of the New Rules of Court. 42 To be clear, therefore, I agree with the Master that there is no general prohibition against asking affiants for undertakings on questioning on Rozak Estate v. Demas R.A. Graesser J. 379

their affidavits, but that the propriety of any undertaking sought is governed by the tests set out above. 43 This does not prevent an affiant or counsel on his or her behalf from agreeing to provide undertakings on a voluntary basis. As noted by the Master, it may be in the affiant’s advantage to provide such information, as the information will be used on the underlying application. Giving undertakings, and complying with them, may avoid the underlying motion from failing for want of evidence. 44 I also agree with the Master’s conclusion that the courts should be slower in requiring affiants to inform themselves than is the case with witnesses being questioned in the disclosure process under Part 5 of the New Rules. 45 Here, I am satisfied that, subject to privilege issues and relevance issues as to each inquiry requested, it is appropriate to require Mr. Brogden to inform himself as to steps taken on his behalf to identify the individuals who may have been involved in Ms. Rozak’s treatment at the Univer- sity Hospital. 46 In relation to this application, Mr. Brogden can only assert that he has been reasonably diligent in identifying the appropriate defendants by informing himself from his counsel as to what was done by them on his behalf. The information sought relates to an important issue in the application - the commencement date for the limitation period - and requesting the information from counsel is not onerous and would likely be significant in determining the application. 47 Thus both alternatives in the test in Dow Chemical are satisfied here.

VII. Relevance 48 It should be noted that the Plaintiff does not argue that the naming of Dr. Darren Neilson was a misnomer. The Plaintiff intended to sue someone else, not Dr. Darren Neilson, so this is not a case of mis-spelling the person’s name. 49 The doctors are resisting the underlying application on the basis of the Limitations Act. There are two provisions in the Limitations Act which are brought into play: s. 3(1)(a) dealing with the basic two year limitation period from discovery of the cause of action, and sections 6(1) and 6(4)(1)(b) dealing with adding defendants to an existing lawsuit after the two year period has run. 380 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

50 S. 3(1)(a) provides: Subject to section 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, 51 S. 6(1) states: Notwithstanding the expiration of the relevant limitation period, when a claim is added to a proceeding previously commenced, either through a new pleading or an amendment to pleadings, the defendant is not entitled to immunity from liability in respect of the added claim if the requirements of subsection (2), (3) or (4) are satisfied. 52 S. 6(4)(b) states: (b) the defendant must have received, within the limitation period applicable to the added claim plus the time provided by law for the service of process, sufficient knowledge of the added claim that the defendant will not be prejudiced in maintaining a defence to it on the merits. 53 Additionally, s. 6(5)(b) provides that: the defendant has the burden of proving that the requirement of subsection 3(b) or 4(b), if in issue, was not satisfied.

VIII. Onus and Arguments 54 As this is an application to add defendants, to which s. 6(4)(b) applies, the doctors acknowledge that the onus is on them to demonstrate that their identities were discoverable by Mr. Brogden before the dates identified below, citing Resortport Development Corp. v. Alberta Racing Corp., 2004 CarswellAlta 1880 (Alta. Q.B.), at para. 3, aff’d 2005 ABCA 49 (Alta. C.A.). 55 The test for discoverability is set out in De Shazo v. Nations Energy Co., 2005 ABCA 241 (Alta. C.A.): A cause of aciton arises for purposes of a limitation period when the material facts on which it (the cause of action) is based have been Rozak Estate v. Demas R.A. Graesser J. 381

discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence. (At para. 26) ... The claimant must know or have been reasonably able to discover that: (i) the injury occurred; (ii) the injury was attributable to the conduct of the defendant; and (iii) the injury warrants bringing a proceeding. (At para. 28) 56 In this case, there are different arguments with respect to each of the doctors:

Dr. Kevin Neilson 57 The Plaintiff argues that Dr. Neilson was served within two years from the discovery of an arguable cause of action against him. The Uni- versity Hospital records only show “Dr. Neilson”; materials relied on by the Plaintiff for the purpose of preparing and issuing the Amended State- ment of Claim showed only Dr. Darren Neilson as an emergency doctor in Edmonton. The first the Plaintiff learned of Dr. Kevin Neilson was a June 20, 2008 email from counsel for the doctors, who advised that “He (Dr. Darren Neilson) tells us that Dr. Kevin Neilson, however, was on shift. Darren believes that Kevin should be the named Defendant.” 58 If June 20, 2008 is the appropriate date for the discoverability of Dr. Kevin Neilson’s identity and involvement, the application to amend (No- vember 14, 2008) was within the discoverability date. 59 Alternatively, if Dr. Kevin Neilson is to be treated as a party to be added after the limitation period has expired, the test is whether he learned of a possible claim against him within the appropriate limitation period, plus the time for service of the Amended Statement of Claim under the Rules of Court. 60 In the latter circumstance, the Amended Statement of Claim was issued on June 1, 2007. It had to be served (or renewed) before June 1, 2008. But using discoverability principles, the Plaintiff argues that the earliest commencement time would be November 16, 2005, the date the November 14, 2005 correspondence from the University Hospital enclos- ing Ms. Rozak’s medical chart was received by Mr. Brogden’s counsel. Thus, the Statement of Claim should have been issued and served on Dr. Kevin Neilson by November 16, 2008. 61 As such, even if the limitation period has expired, since Dr. Kevin Neilson had knowledge of the possible action against him on July 2, 382 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

2008, the application to add him as a defendant to the existing action is not barred by the Limitations Act. 62 Dr. Neilson argues that the limitation period began to run on June 4, 2005, the date of Ms. Rozak’s death. Alternatively, he argues that Mr. Brogden has not established that he was reasonably diligent in obtaining the University Hospital’s chart and in determining that the Dr. Neilson referred to in it was Dr. Kevin Neilson and not Dr. Darren Neilson. He argues that his signature is clearly identifiable in the chart, and he is shown in the readily-available Alberta Health and Wellness Statement of Benefits Paid as having provided services to Ms. Rozak on June 3, 2005. 63 The Statement of Benefits Paid was not ordered until October 20, 2008, and was received by Mr. Brogden’s counsel on November 12, 2008. 64 Dr. Neilson argues that the limitation period expired much before No- vember 16, 2005 and that Mr. Brogden has not proven that he was reasonably diligent in obtaining records and determining the correct defendants to name in the Statement of Claim. 65 Essentially, his argument is that the limitation period expired on June 3, 2007. For the purposes of s. 6(4)(b) of the Limitations Act, Dr. Kevin Neilson would have had to have known about the possible claim before June 3, 2008. Mr. Brogden has not proven that he was reasonably diligent in obtaining the necessary information; thus there should be no extension of the June 3, 2007 limitation period. Thus, when Dr. Kevin Neil- son learned of the possible claim against him on July 2, 2008, it was too late under s. 6(4)(b). 66 To succeed in adding Dr. Kevin Neilson, Mr. Brogden will have to establish that it was not unreasonable for him to have taken no steps to identify the doctors involved in Ms. Rozak’s treatment at the University Hospital before July 2, 2005 and that the limitation period under s. 3(1)(a) commenced then or later.

Dr. Ostolosky 67 Mr. Brogden argues that the discoverability period for Dr. Ostolosky began to run on November 16, 2005 when the hospital records identifying her and her involvement were received by his counsel. Thus, so long as she had notice of the possible claim against her by November 16, 2008, the claim against her is not barred under the Limitations Act. Since she was served with the Amended Statement of Claim and was advised Rozak Estate v. Demas R.A. Graesser J. 383

that Mr. Brogden intended to have her added as a defendant by letter of November 3, 2008, there is no limitations defence for her. 68 Dr. Ostolosky responds in similar fashion to Dr. Neilson: Mr. Brogden has not discharged the onus on him of showing reasonable diligence in obtaining the medical records and the relevant date should not be extended beyond the basic limitation period of June 3, 2005. That would have required notice to her by June 3, 2008. Since she did not receive notice until November 3, 2008, the application to add her as a defendant under s. 6(4)(b) of the Limitations Act must fail. 69 For Mr. Brogden to succeed in adding Dr. Ostolosky, Mr. Brogden will have to establish that it was not unreasonable for him to have taken no steps to identify the doctors involved in Ms. Rozak’s treatment at the University Hospital before he consulted counsel in August, 2005 (two or so months after Ms. Rozak’s death) and that it was not unreasonable for his counsel to take until November 16, 2005 to obtain the University Hospital chart or otherwise identify the doctors involved in her treatment. Essentially, that the limitation period under s. 3(1)(a) did not begin to run until November 16, 2005 or later.

Dr. Din 70 Mr. Brogden argues that Dr. Din’s name and involvement could not reasonably be determined from the University Hospital chart, and his name does not appear on the Statement of Benefits Paid. 71 Mr. Brogden met him on June 3, 2005 when Dr. Din interviewed Ms. Rozak and (as confirmed on his cross-examination on September 15, 2009 that he was aware of the involvement of a white male emergency doctor and an East Indian or Middle Eastern male psychiatrist. 72 Mr. Brogden deposed in his affidavit sworn November 13, 2008 in support of his application to add Dr. Ostolosky as a defendant, that he did not then know the identity of the East Indian or Middle Eastern psychiatrist or resident. Attached to his affidavit was a request by his counsel to the University Hospital’s counsel is a letter dated October 20, 2008 requesting the name of the “consultant’s signature”. 73 He argues that the discoverability period with respect to Dr. Din had not expired by October 20, 2008. While no formal application has been made to add Dr. Din as a defendant, that is not necessary because under s. 6(4)(b), he can still be added as a defendant. He had notice of the possibility of this action against him in mid-February, 2009 which was well within the limitation period, let alone any added service period. 384 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

74 Dr. Din’s counsel argues that the limitation period against him expired on June 3, 2007. Mr. Brogden has not satisfied the onus on him of showing reasonable diligence in seeking out his identity and involvement. His involvement (but not necessarily his name) was known to Mr. Brogden on June 3, 2005 when they met. At the latest, discoverability for Dr. Din might run to November 16, 2005 when the hospital charts were provided to Mr. Brogden’s counsel. The chart clearly identifies Dr. Din. Thus, the latest limitation period for Dr. Din would have expired on No- vember 16, 2007. For s. 6(4)(b) of the Limitations Act to apply, he would have had to have had notice of the possible claim before November 16, 2007. Since he only had such notice in mid-February, 2009, the action is clearly barred against him and the application to add him under 6(4)(b) is doomed to fail. 75 For Mr. Brogden to succeed in adding Dr. Din, it appears that he will have to establish that it was not unreasonable for his counsel to have not identified Dr. Din from the University Hospital records provided to them on November 16, 2005, and further that it was not unreasonable for them to take no further steps to identify doctors involved in Ms. Rozak’s treatment at the University Hospital until after mid-February, 2006 (despite Mr. Brogden’s knowledge that an East Indian or Middle Eastern psychiatrist was involved). Essentially, that the limitation period under s. 3(1)(a) did not begin to run until mid-February, 2006 or later. 76 Mr. Brogden also has arguments that could lead to similar result as are argued with respect to Dr. Kevin Neilson and Dr. Ostolsky: that sufficient information was not learned about Dr. Din’s involvement until late 2008 or even 2009 such that the period under s. 6(4)(b) has not yet run. For the purpose of this application, those arguments do not need to be dealt with. 77 Thus, the issues for Dr. Kevin Neilson are: 1. Whether the limitation period based on discoverability expired July 2, 2007 or later. 2. Has Dr. Neilson satisfied the onus on him that Mr. Brogden should, with reasonable diligence, have discovered that he had a possible cause of action against Dr. Kevin Neilson before July 2, 2005 (a month after Ms. Rozak’s death and before he sought legal counsel in August, 2005)? Rozak Estate v. Demas R.A. Graesser J. 385

78 For Dr. Ostolovsky: 1. Whether the limitation period based on discoverability expired November 12, 2007 or later. 2. Has Dr. Ostolovsy satisfied the onus on her that Mr. Brogden should, with reasonable diligence, have discovered that he had a possible cause of action against Dr. Os- tolovsky before November 12, 2005 (before Mr. Brogden’s counsel received the University Hospital chart identifying Dr. Ostolovsky)? 79 For Dr. Din: 1. Whether the limitation period based on discoverability expired before mid-February, 2008. 2. Has Dr. Din satisfied the onus on him that Mr. Brogden should, with reasonable diligence, have discovered that he had a possible cause of action against Dr. Din before mid- February, 2006 (three months after the University Hospital chart with his signature and printed name was received by Mr. Brogden’s counsel)? 80 It is reasonable to assume that Mr. Brogden left the identification of possible defendants to his counsel after August, 2005, so issues as to his diligence or reasonableness in trying to identify the correct defendants are really issues as to the diligence or reasonableness of his counsel. Thus the application and the evidence is destined to bump up against solicitor - client privilege and solicitor’s work product privilege.

IX. Master’s Decision 81 The essence of the Master’s ruling is found at pages 2 and 3 of his decision: Further comment from the BC Appellate Court in Hodgkinson v. Simms 1988 CarswellBC 437: If lawyers were entitled to dip into each other’s briefs by means of the discovery process, the straightforward preparation of cases for trial would develop into a most unsat- isfactory travesty of our present system. In my view, there might be an appropriate case to allow for that type of questioning, but it would have to be a rather severe case, and it would have to be a situation where justice cried out for that type of inquiry to be answered. In this case, it is clear from the hospital record that Kevin Neilson should have been named as a defendant as 386 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

should have Dr. Ostolosky and as should the resident. So in this case there is no obligation for Mr. Brogden in the context of a cross-examination on affidavit to answer undertakings, especially where, as her, it would require Mr. Brogden to inform himself of making inquiries of his counsel in order to provide the answer. In my vies, the Court should lean towards protecting the file of counsel for the plaintiff, and, as I say, in an appropriate case, it might be that the Court would rule otherwise. Dealing now with the undertakings in question, I do not think it is necessary to go through them one by one. I have already indicated which way I am headed on this, so that undertaking number 6, 8, 9, and 10 do to have to be answered. Undertaking 13 is to make inquiries of Brogden’s counsel as to what medical directories are available in his lawyer’s office. That does not go into the lawyer’s brief. That is a straightforward matter, and I direct that that be provided. Undertaking number 16 is to make inquiries and determine when it was that r. Brogden first advised counsel that he had a recollection of Ms. Rozak being seen by a male intern, a resident of Middle Eastern Descent. That is relevant material, and it shall be provided. Eighteen is, my view, going into plaintiff’s counsel’s file or worse yet, asking him to ask his lawyer to provide an answer to that question, and that will not be provided. Twenty-one, again it is asking Mr. Brogden to seek information from his counsel, and that will not be provided. I should say a number of these matters for them not to be provided does not mean that the information sought is not available in one form or another to be provided to the Court should this matter proceed to trial or to summary judgment. Twenty-two is make inquiries of Brogden’s counsel to determine if there was something preventing him from determining or recognizing that there was a resident involved. I mean, again, that is asking the plaintiff to get information from the counsel. It is evident from the possible record that there was a resident involved, so the evidence is already there. 82 He determined that undertaking requests 6, 8, 9, 10 and 22 need not be answered because they involved solicitor’s work product privilege, and he was not satisfied that such privilege had been waived. 83 With respect to undertaking requests 13 and 16, he directed that they be answered, on the basis of relevance. Rozak Estate v. Demas R.A. Graesser J. 387

X. Specific Undertakings Requests 84 The onus of showing that Mr. Brogden failed to exercise reasonable diligence in discovering the identities of the doctors involved lies on the doctors. It is also clear that knowledge as to what Mr. Brodgen knew and when he knew it would not be known to the doctors, and the only way of finding out such information would be to obtain it from him, or from persons acting on his behalf. 85 The issues of knowledge, diligence and timing are clearly relevant and material to the underlying application in a general way, and specifically with respect to those issues to those specific dates discussed above.

Undertaking 6 86 Request 6 seeks any more information received or obtained to determine that Carl Blashko and Darren Neilson should be added as defendants prior to filing the Amedned Statement of Claim. 87 Firstly, there is no issue regarding Dr. Blashko on the underlying application, so information regarding him is not relevant and need not be provided. As regards Dr. Darren Neilson, the relevant date for the purpose of the underlying application is July 2, 2005. 88 It may be that the plaintiff was not diligent in seeking counsel. It may be that counsel was not diligent in identifying the doctors involved in Ms. Rozak’s care at the University Hospital. But a statement of claim was issued within the time for the earliest possible limitation period to expire. Dr. Darren Neilson was therefore sued in time, although it is clear that there was no cause of action against him. 89 Therefore, the underlying application clearly involves s. 6(4)(b) of the Limitations Act, and the only relevant date for Dr. Kevin Neilson is July 2, 2005. Any lack of diligence after that date does not affect the outcome of the underlying application. 90 The undertaking which might be required to be answered would be “what information was received or determined that Darren Neilson should be added as a defendant prior to July 2, 2005”. Because counsel was not retained until August, 2005, the answer to that undertaking would be solely in Mr. Brogden’s knowledge, and he should be required to answer it. 388 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

Undertaking 8 91 Request 8 seeks information as to what steps were taken on Mr. Brogden’s behalf to determine why Darren Neilson was named as a defendant. 92 As the answer to that question relates to a period long after July 2, 2005, I do not see any relevance to it and it need not be answered.

Undertaking 9 93 Request 9 seeks information as to what steps were taken on Mr. Brogden’s behalf between June 4, 2005 and June 1 2008 to determine whether any other physician should be named as defendants in the lawsuit, particularly Dr. Ostolosky and Dr. Din. 94 The relevant date for Dr. Ostolosky is November 12, 2005. The relevant date for Dr. Din is mid-February, 2006. 95 If steps were taken on Mr. Brogden’s behalf other than by or for his lawyers, that information should be provided as regards Dr. Ostolsky to November 12, 2005 and as to Dr. Din to February 15, 2006. 96 With respect to steps taken on Mr. Brogden’s behalf by his counsel, solicitor-client privilege and solicitor’s work product privilege are raised. 97 At the outset, I need not weigh into whether solicitor’s work product privilege is or is not a subset of litigation privilege or a stand-alone privilege of lesser. Whether as a subset of litigation privilege or standing on its own, work product privilege has lesser standing than solicitor-client privilege. Blank v. Canada (Department of Justice), 2006 SCC 39 (S.C.C.), R. v. Card, 2002 ABQB 537 (Alta. Q.B.), Hudson Bay Mining & Smelting Co. v. Cummings, 2006 MBCA 98 (Man. C.A.), Moseley v. Spray Lakes Sawmills (1980) Ltd. (1996), 39 Alta. L.R. (3d) 141 (Alta. C.A.), are to that effect. 98 Privilege can be waived by giving evidence of a privileged communication, or where a party, by his testimony or pleading voluntarily raises a defence or asserts a claim which makes information provided by his solicitor relevant. Selective waiver is not permitted: Ed Miller Sales & Rentals Ltd. v. Caterpillar Tractor Co. [1992 CarswellAlta 86 (Alta. Q.B.)], 1992 CanLII 6132; True Blue Cattle Co. v. Toronto Dominion Bank, 2004 ABQB 145 (Alta. Q.B.), Petro Can Oil & Gas Corp. v. Resource Service Group Ltd., [1988] A.J. No. 336 (Alta. Q.B.), aff’d (1988), 32 C.P.C. (2d) xlvi (note) (Alta. C.A.); Alberta Wheat Pool v. Estrin, [1986] A.J. No. 1165 (Alta. Rozak Estate v. Demas R.A. Graesser J. 389

Q.B.), aff’d (1987), 17 C.P.C. (2d) xxxix (note) (Alta. C.A.); Marion v. Wawanesa Mutual Insurance Co., 2004 ABCA 213 (Alta. C.A.). 99 Positions cannot be taken that are inconsistent with maintaining privilege; privilege on a particular issue or point cannot be waived selectively or unfairly. 100 I hasten to add that preservation and protection of solicitor client privilege (and to a lesser extent litigation privilege and solicitor’s work product privilege) is important, and privilege should not be interfered with other than in the few exceptional circumstances recognized by the courts: Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31 (S.C.C.), Descˆoteaux c. Mierzwinski, [1982] 1 S.C.R. 860 (S.C.C.), Smith v. Jones, [1999] 1 S.C.R. 455 (S.C.C.), and R. v. Fosty, [1991] 3 S.C.R. 263 (S.C.C.). 101 Where the issue of diligence has been legitimately raised (as it has here because of the Plaintiff’s application to add the doctors as defendants after the standard without-discoverability period of two years from the injury), the Plaintiff’s diligence as well as his solicitor’s diligence becomes relevant. As the only way the doctors have of testing such diligence is through cross-examination on Mr. Brogden’s affidavit and seeking undertakings with respect to his counsel’s actions (unless the doctors wanted to risk examining the Plaintiff’s counsel under Rule 6.8 as their witness rather than through cross-examination), solicitor client privilege may well have to yield on issues relating to knowledge of doctors, and the diligence of the solicitors in informing that knowledge. It would be unfair to allow the plaintiff to essentially say “I didn’t do anything, I left it all to my lawyers” and then refuse to say what the lawyers have told him they did, or even ask them about it. 102 That is not to say that the resulting waiver or loss of privilege extends to anything beyond diligence in discovering the identity of the doctors involved. Mr. Brogden’s affidavits do not go beyond diligence issues, and anything beyond that would be irrelevant to the underlying application let alone being an unwarranted incursion into privilege. 103 In the context of the undertaking sought, as modified by me above, I do not see that it is improper to ask what steps the solicitors took from the time they were retained until the relevant date specified above. Mr. Brogden has brought diligence into issue by applying to add the doctors as defendants, and discoverability is necessary to extend the limitation period for suing each of the doctors to or beyond the relevant dates. 390 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

Undertaking 10 104 Request 10 seeks information as to whether there was anything preventing Mr. Brogden or anyone on his behalf from contacting the University Hospital to make inquiries as to the identities of the doctors who were involved in Ms. Rozak’s care. 105 I see this as a question of diligence - was there some reason why Mr.Brogden’s counsel did not contact the University Hospital or its solicitors to determine specifically which doctors were involved, particularly after receipt on November 16, 2005 of the University Hospital chart in which Dr. Kevin Neilson’s signature, Dr. Ostolosky’s name and Dr. Din’s signature and printed name are found (legibility issues aside). 106 As regards Dr. Kevin Neilson, the question is irrelevant as the relevant date for him had passed before counsel was retained. 107 As regards Dr. Ostolosky, the relevant date is November 12, 2005. In my view, the undertaking should be answered with respect to her to No- vember 12, 2005. My view on privilege is the same as with requested undertaking 9. 108 As regards Dr. Din, the relevant date is February 16, 2006, and the undertaking should be answered with respect to him to February 16, 2006. 109 Any times after February 16, 2006 are simply not relevant to the application to amend.

Undertaking 13 110 In request 13, the doctors seek information as to what materials were available to Mr. Brogden’s counsel between August, 2005 and June 1, 2008 (when the Amended Statement of Claim was issued). Mr. Brogden objects to this as it is part of his solicitor’s work product. 111 Firstly, as with the other undertaking requests, times after February 16, 2006 are not relevant to the application to amend. So the time frame is in any event narrowed to August, 2005 to February 16, 2006. Dili- gence is in issue. It seems to me that it is relevant to know what resources the plaintiff (or his counsel) actually had readily available to them, or obtained for the purposes of determining the appropriate parties, during this relevant time frame. Certainly the doctors are free to argue what sources of information might have been available to the plaintiff or his counsel, but it is clearly relevant to know what information they actually had. Rozak Estate v. Demas R.A. Graesser J. 391

112 Mr. Brogden’s counsel has already advised that they had the 2005 Canadian Medical Directory in their offices and that they consulted it regarding Dr. Darren Neilson. There are issues relating to his identity, as well as whether Dr. Din’s identity is ascertainable from the University Hospital Chart. I see no valid objection to Mr. Brogden being asked to enquire of his solicitors what resources they had in their offices to ascertain doctors’ identities during this period. 113 As to privilege, if any materials were obtained for the purpose of this litigation in this period, privilege has been waived by the plaintiff putting his due diligence in issue. If materials (such as directories) are simply part of counsel’s library, I do not see that it could be claimed that they were obtained for the dominant purpose of this litigation. In that regard, I do not see the request as being any more objectionable than asking if counsel had the Western Weekly Reports or the Supreme Court Reports in their offices. They may be there for litigation purposes generally, but no one file specifically. It would be difficult to see how a “dominant purpose” test for privilege could be met. 114 The requested undertaking should be answered, but limited to the period ending February 16, 2006.

Undertaking 16 115 In request 16, the doctors want to know when Mr. Brogden told his counsel that Ms. Rozak had been treated by a male resident or intern of East Indian or Middle Eastern descent. This was objected to on the basis of the answer being a protected solicitor-client communication. 116 Doubtless the question goes to the a well-protected area: communications between solicitor and client for the purpose of giving and receiving legal advice. However, in my view the privilege relating to the answer has been waived by the issue of due diligence in determining Dr. Din’s involvement and identity being brought into issue by Mr. Brogden. If the answer relates to a period after February 16, 2006, the specific date or circumstances need not be disclosed as being irrelevant. But if such a disclosure was made before February 16, 2006, the doctors are entitled to know that. 117 22 The doctors want to know why Dr. Din’s involvement and identity were not recognized by counsel following receipt of the University Hos- pital records on November 16, 2005. Ordinarily, what was done with the records, or how they were interpreted, would be the subject of work product privilege. In some cases, obtaining records would be included in 392 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

that privilege. That would not apply here, however, as the records were obtained from one of the parties to the lawsuit. 118 Again, because Mr. Brogden’s diligence is in issue, any privilege relating to the records as to that issue has been waived. The doctors are entitled to know why Dr. Din’s identity and involvement were not recognized after November 16, 2005, and whether there were any impediments to following up on the records until at least February 16, 2006.

XI. Conclusion 119 In the end, I find that the learned Master erred in law in declining to order that Mr. Brogden inform himself from counsel and advise as to undertaking requests 6, 9, 10 and 22. The answers to those requests fall within the exceptions to privilege - whether solicitor and client or litigation privilege or work product privilege. Number 8 need not be answered, but on the basis of relevance rather than privilege. 120 I agree with the Master’s conclusion on Number 13. 121 While I agree with his decision on Number 16, he did not deal with privilege. The question was clearly relevant, but the response strikes directly at solicitor-client communications and would clearly be privileged but for waiver. As noted above, Mr. Brogden waived privilege over that communication by putting his diligence into issue. 122 I also agree with the Master’s comment that “the Court should lean towards protecting the file of counsel”. Privilege is an essential part of our legal system, and must be protected, subject to waiver and the very limited exceptions described in the case law.

XII. Costs 123 Despite the fact that I have directed that all but one of the requested undertakings be answered, I have in all cases limited the scope of the inquiries. The doctors sought information for periods much later than is relevant on the application to amend. I thus view the result as having mixed success for both sides: the plaintiff has to provide more information than he was prepared to, and the doctors will receive less information than they sought. 124 As a result, costs of this application, and the application before the Master, should be in the cause. Appeal allowed in part; cross-appeal allowed in part. R. v. Sacrey 393

[Indexed as: R. v. Sacrey] Her Majesty the Queen (Appellant) and Jonathon Lawrence Sacrey (Respondent) Alberta Court of Appeal Docket: Edmonton Appeal 1103-0023-A 2011 ABCA 151 Jean Cˆot´e, Peter Costigan JJ.A., Brian O’Ferrall J. (ad hoc) Heard: May 17, 2011 Judgment: May 19, 2011 Criminal law –––– Post-trial procedure — Appeal from sentence — General principles –––– Practice and procedure — Adjournment — Accused was con- victed and sentenced in respect of unstated offence — Crown appealed from sentence imposed — Accused brought motion for adjournment of hearing of appeal — Motion granted — Accused undertook not to ring fresh evidence motion or to argue “drag effect” in mitigation of any sentence to be imposed — On those conditions, motion was properly granted — Parties were expected to comply with Consolidated Practice Directions Part I, as that tool had been effective in streamlining, inter alia, Crown sentence appeals.

MOTION by accused for adjournment of appeal by Crown from sentence imposed upon accused in respect of unstated offence.

None given

Per curiam:

1 At the opening of the May sentence sittings, counsel appeared in open court to discuss the respondent’s counsel’s late request for an adjournment of this Crown appeal. After some discussion, we did adjourn it, but said that we would give written reasons later. Those are found here. 2 One incidental point is that the respondent’s factum will be filed and served by noon on June 27, 2011. 3 We rely on two facts. Counsel for the respondent told us that there will be no motion for new evidence, and that the respondent will rely upon the existing evidence. So this appeal will proceed on the new date on the merits. Counsel for the respondent also stated to us that had the appeal been argued that day (May 17), that counsel would have argued 394 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

that the respondent accused should not be sent back to jail (he having been recently released). However, she said that she would not argue that that “drag effect” would get worse because of the adjournment. In other words, she will not argue that the further time elapsed after May 17 is an additional or stronger reason to dismiss the appeal or not send the respondent back to jail. 4 The main reason that we give these written reasons is to ensure that all counsel understand fully the significance of deadlines in scheduling and hearing sentence appeals. 5 At one time, sentence appeals were something of a shambles. Judges had to decide some appeals with very little time to read the materials for appeals added very late. Conversely, many of the cases for which the judges had prepared would go off at the last moment, even midway through the first day of argument of appeals. 6 To end those and other injustices and inefficiencies, Part I of the Court’s Consolidated Practice Directions was carefully crafted. It meets a number of serious and conflicting needs, including the following: (a) Avoiding delay, and allowing even fairly short sentences to be effectively appealed by either side, by hearing them before they become academic; (b) Not allowing one party to create delay helpful to it and very prejudicial to the other side; (c) Allowing the judges (some likely from the other city) to have a week or so to read all the materials and consider the law, so that most appeals can be decided on the hearing day or very soon thereafter; (d) Minimizing last-minute adjournments, and so avoiding days of wasted labor by the judges and counsel, and unnecessary travel by counsel and prisoners; (e) Preventing judge shopping; (f) Avoiding the need to bring dozens of counsel down to the courtroom some time before each sentence sittings to speak to the list; and (g) Avoiding duplication of hours of work by the Court’s already overtaxed registry staffs. R. v. Sacrey Per curiam 395

7 So the present system is a great benefit to counsel, their clients, judges, and Court registry staff. If the system (Part I) is not followed, all will suffer. Any replacement system would inconvenience everyone. 8 The present system is designed to work automatically and to save everyone’s time by avoiding waste and uncertainty. The Case Manage- ment Officers and Registry staff monitor it, especially by speaking to counsel. Part I worked extremely well, so well that the Court later adopted much of it for civil procedural and child appeals (Part J). 9 Repeated testing, study, and experiments have shown that all the time deadlines in Part I of the Consolidated Practice Directions are vital. There is little or no surplus unnecessary time in Part I. We especially refer to Part I.11, on consent adjournments. Even a day or two’s delay can have dramatic cascading and other effects. Some of these deadlines were ignored in the present case, producing misunderstandings, lack of information, and uncertainty for all concerned. Not to mention the cost to the taxpayers of sending a judge to another city with no appeal to be heard. 10 The Court has learned from experience to be careful of some types of appeal which statistically are disproportionately likely to encounter de- lays or unpreparedness. One such type is Crown sentence appeals. 11 When opposing counsel discuss the possibility of a consent adjournment, it is also critical that each of them be frank and forthcoming about future commitments and what conditions are desired. Counsel who asks for an adjournment to a certain date impliedly represents to the Court and to opposing counsel that he or she will be prepared to proceed on the merits on the date suggested. Putting an appeal over for (say) one month without then revealing that counsel will not be available to argue on the fixed date the next month either, is completely unacceptable. 12 Finally, it is important that counsel read and answer promptly communications from the Case Management Officer or the Court of Appeal Registry. That is a duty which they assume when they get on the record for an appeal. Motion granted. 396 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

[Indexed as: R. v. Pelech] Her Majesty the Queen (Applicant) and Travis Gregory Pelech (Respondent) Alberta Court of Appeal Docket: Edmonton Appeal 1103-0103-A 2011 ABCA 229 Ronald Berger J.A. Heard: July 13, 2011 Judgment: July 25, 2011 Criminal law –––– Post-trial procedure — Appeal from conviction or ac- quittal — Where leave to appeal required — Court of Appeal –––– Police officer conducted traffic stop on vehicle which had no lights on late at night and which he saw go three stop signs without braking — Officer approached vehicle and noted that accused driver had glossy eyes, slightly slurred speech, and strong odour of liquor on his breath — Officer, satisfied that he had reasonable and probable grounds to arrest accused for impaired driving, did so — Trial judge concluded that inferences drawn from evidence established that accused’s ability to operate motor vehicle was impaired by alcohol — Summary conviction appeal judge overturned conviction on basis that trial judge failed to take into account rule in Hodge’s case, thereby erring in failing to consider whether inference of impairment by alcohol was only rational inference to be drawn from evidence — Crown applied for leave to appeal — Application granted — Where, as here, case is based on circumstantial evidence, inference of guilt can only be drawn where it is only rational inference which can be drawn — Appeal judge’s ruling to quash conviction and order new trial was clearly premised on alleged failure of trial judge to instruct himself on rule in Hodge’s case — It was arguable that trial judge must be taken to have been alive to contention that accused’s negligent driving pattern was equally consistent with breach of provisions of Highway Traffic Act as with impaired driving — Trial judge carefully and methodically reviewed evidence and was clearly alive to reasonable doubt standard — Rule in Hodge’s Case is not essential instruction in circumstantial case — Appeal had arguable merit on proffered ground that appeal judge committed clear error of law that warranted appellate review — Leave to appeal granted on question of whether trial judge erred in failing to make express reference in his reasons for judgment or to have regard to rule in Hodge’s case. Evidence –––– Proof — Standard — Rule in Hodge’s case — When applicable –––– Police officer conducted traffic stop on vehicle which had no lights on late at night and which he saw go three stop signs without braking — Officer R. v. Pelech 397 approached vehicle and noted that accused driver had glossy eyes, slightly slurred speech, and strong odour of liquor on his breath — Officer, satisfied that he had reasonable and probable grounds to arrest accused for impaired driving, did so — Trial judge concluded that inferences drawn from evidence established that accused’s ability to operate motor vehicle was impaired by alcohol — Sum- mary conviction appeal judge overturned conviction on basis that trial judge failed to take into account rule in Hodge’s case, thereby erring in failing to consider whether inference of impairment by alcohol was only rational inference to be drawn from evidence — Crown applied for leave to appeal — Application granted — Where, as here, case is based on circumstantial evidence, inference of guilt can only be drawn where it is only rational inference which can be drawn — Appeal judge’s ruling to quash conviction and order new trial was clearly premised on alleged failure of trial judge to instruct himself on rule in Hodge’s case — It was arguable that trial judge must be taken to have been alive to contention that accused’s negligent driving pattern was equally consistent with breach of provisions of Highway Traffic Act as with impaired driving — Trial judge carefully and methodically reviewed evidence and was clearly alive to reasonable doubt standard — Rule in Hodge’s Case is not essential instruction in circumstantial case — Appeal had arguable merit on proffered ground that appeal judge committed clear error of law that warranted appellate review — Leave to appeal granted on question of whether trial judge erred in failing to make express reference in his reasons for judgment or to have regard to rule in Hodge’s case. Criminal law –––– Offences — Impaired driving/care or control — Proof of impairment — General principles –––– Police officer conducted traffic stop on vehicle which had no lights on late at night and which he saw go three stop signs without braking — Officer approached vehicle and noted that accused driver had glossy eyes, slightly slurred speech, and strong odour of liquor on his breath — Officer, satisfied that he had reasonable and probable grounds to arrest accused for impaired driving, did so — Trial judge concluded that inferences drawn from evidence established that accused’s ability to operate motor vehicle was impaired by alcohol — Summary conviction appeal judge overturned conviction on basis that trial judge failed to take into account rule in Hodge’s case, thereby erring in failing to consider whether inference of impairment by alcohol was only rational inference to be drawn from evidence — Crown applied for leave to appeal — Application granted — Where, as here, case is based on circumstantial evidence, inference of guilt can only be drawn where it is only rational inference which can be drawn — Appeal judge’s ruling to quash conviction and order new trial was clearly premised on alleged failure of trial judge to instruct himself on rule in Hodge’s case — It was arguable that trial judge must be taken to have been alive to contention that accused’s negligent driving pattern was equally consistent with breach of provisions of Highway Traffic Act as with impaired driving — Trial judge carefully and methodically reviewed evidence 398 ALBERTA LAW REPORTS 53 Alta. L.R. (5th) and was clearly alive to reasonable doubt standard — Rule in Hodge’s Case is not essential instruction in circumstantial case — Appeal had arguable merit on proffered ground that appeal judge committed clear error of law that warranted appellate review — Leave to appeal granted on question of whether trial judge erred in failing to make express reference in his reasons for judgment or to have regard to rule in Hodge’s case. Cases considered by Ronald Berger J.A.: R. v. Andrews (1996), 46 C.R. (4th) 74, 104 C.C.C. (3d) 392, 178 A.R. 182, 110 W.A.C. 182, 1996 ABCA 23, 20 M.V.R. (3d) 140, 1996 CarswellAlta 7, [1996] A.J. No. 8 (Alta. C.A.) — considered R. v. Cooper (1977), 37 C.R.N.S. 1, 74 D.L.R. (3d) 731, 1977 CarswellOnt 484F, [1978] 1 S.C.R. 860, 14 N.R. 181, 34 C.C.C. (2d) 18, 1977 Carswell- Ont 10, [1977] S.C.J. No. 81, [1977] A.C.S. No. 81 (S.C.C.) — considered R. v. Eastwood (2008), 433 A.R. 239, 429 W.A.C. 239, 2008 CarswellAlta 606, 2008 ABCA 181 (Alta. C.A.) — referred to R. v. Griffin (2009), 2009 CarswellQue 5997, 2009 CarswellQue 5998, 2009 SCC 28, 67 C.R. (6th) 1, 388 N.R. 334, 307 D.L.R. (4th) 577, 244 C.C.C. (3d) 289, [2009] 2 S.C.R. 42, [2009] S.C.J. No. 28 (S.C.C.) — referred to R. v. Hodge (1838), (sub nom. Hodge’s Case) 168 E.R. 1136, 2 Lewin 227, 1 Stark. 849 (Eng. C.C.R.) — considered R. v. P. (W.R.) (2007), 2007 CarswellAlta 733, 2007 ABCA 187, 220 C.C.C. (3d) 519, 412 A.R. 176, 404 W.A.C. 176 (Alta. C.A.) — referred to R. v. Power (2002), 3 Alta. L.R. (4th) 158, 2002 ABQB 153, 2002 CarswellAlta 237, [2002] 8 W.W.R. 495, 25 M.V.R. (4th) 234, 311 A.R. 27, [2002] A.J. No. 178 (Alta. Q.B.) — considered R. v. Walker (2008), [2008] 6 W.W.R. 1, 2008 SCC 34, 2008 CarswellSask 347, 2008 CarswellSask 348, 375 N.R. 228, 57 C.R. (6th) 212, [2008] 2 S.C.R. 245, 310 Sask. R. 305, 423 W.A.C. 305, 294 D.L.R. (4th) 106, 231 C.C.C. (3d) 289, [2008] S.C.J. No. 34 (S.C.C.) — referred to Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 s. 253(1)(a) — pursuant to Highway Traffic Act, R.S.A. 2000, c. H-8 Generally — referred to

APPLICATION by Crown for leave to appeal judgment reported at R. v. Pelech (2011), 13 M.V.R. (6th) 238, 2011 ABQB 88, 2011 CarswellAlta 415 (Alta. Q.B.), overturning conviction of accused for impaired driving.

J.R. Russell for Applicant L.L. Garcia for Respondent R. v. Pelech Ronald Berger J.A. 399

Ronald Berger J.A.:

1 This is an application by the Crown for leave to appeal the judgment of Veit J., sitting as a summary conviction appeal court judge, overturning a conviction pronounced by Prov. Judge Day on the charge that the Respondent did unlawfully operate a motor vehicle while his ability to operate that vehicle was impaired by alcohol or a drug, contrary to s. 253(1)(a) of the Criminal Code. The findings of fact of the trial judge may be summarized as follows: 1. The arresting constable, on December 6, 2009, observed the Respondent’s vehicle leaving a drinking establishment. 2. Neither the headlights nor the running lights on the vehicle were on. 3. The Respondent went through three stop signs without slowing or stopping. 4. When the officer engaged his emergency lights there was no response. 5. When he operated his siren intermittently, again there was no response. 6. The officer deployed his “alley light” to get the Respon- dent’s attention; he slowed and parked in a parking lot. 7. When the Respondent exited his vehicle, his balance and coordination appeared to be “alright”. 8. The officer’s observations of the Respondent were the following: • he had glassy, shiny or plastic looking eyes. • he had a cotton or dry mouth. • he had slightly slurred speech, although he was co- herent and understood the conversation he had with the officer. • he provided the officer with a Canadian passport and had no difficulty in handling that document. • The Respondent became tearful in the course of the officer’s investigation. 9. The arresting officer, satisfied that he had reasonable and probable grounds to arrest the Respondent for impaired driving, did so. 400 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

2 The trial judge reviewed all of the foregoing and concluded that he was satisfied beyond a reasonable doubt “that the inferences drawn there- from establish the accused’s ability to operate a motor vehicle was impaired by alcohol, and I convict the accused accordingly.” (Transcript of Trial Proceedings, p. 37/30-31) 3 On appeal to the Court of Queen’s Bench, Veit J. opined upon a review of all of the facts that “[i]mpairment [i.e. impaired driving] was easily made out. The issue on this appeal is whether the trial judge adequately addressed the legal principle that, where a case is based on circumstantial evidence [i.e. of impairment by alcohol], as is the situation here, an inference of guilt can only be drawn where it is the only rational inference which can be drawn.” (at para. 19) 4 She concluded at para. 20: “... the trial judge failed to take into account the rule in Hodge’s case, thereby committing the error of failing to consider whether the inference of impairment by alcohol was the only rational inference that could be drawn from the evidence.” In so holding, Veit J. noted that Crown counsel was relying on a decision of Watson J. (as he then was) in R. v. Power, 2002 ABQB 153, 311 A.R. 27 (Alta. Q.B.), at para. 53, who held: The approach to circumstantial evidence in proof of the condition of the motorist is not such as to require that the Trial Judge be satisfied that the proscribed impaired condition is the only rational conclusion to be drawn from the whole of the evidence, as in Hodge’s Case. 5 Citing the decision of the Supreme Court of Canada in R. v. Griffin, [2009] 2 S.C.R. 42 (S.C.C.), Veit J. expressed the view that Watson J. over-extended the effect of R. v. Cooper (1977), [1978] 1 S.C.R. 860 (S.C.C.) upon which Watson J. also relied. 6 In quashing the conviction and ordering a new trial, Veit J. reasoned, in part, as follows (at para. 26): Here, given the ambiguity of the evidence, ambiguity which was recognized by the trial judge, (physical dexterity for example) and the totality of the evidence (time of day and presence of passenger, for example), there was an obligation on the trial judge to consider the rule in Hodge’s case before making inferences about the cause of Mr. Pelech’s impairment. [emphasis added] 7 Although proffered as a ground of appeal to this Court, I am unable to accede to the Crown’s contention that it is arguable that Veit J.’s reasons suggest that the trial judge had a duty to consider speculative causes of impairment before being satisfied beyond a reasonable doubt that the ac- R. v. Pelech Ronald Berger J.A. 401

cused’s ability to operate a motor vehicle was impaired by alcohol. Nor do I read her judgment to hold that impairment of the ability to drive had to be attributable to the consumption of alcohol alone. 8 The thrust of her ruling to quash the conviction and order a new trial is clearly premised on the alleged failure of the trial judge to instruct himself on the rule in Hodge’s Case [R. v. Hodge (1838), 168 E.R. 1136 (Eng. C.C.R.)]. As to this latter ground of appeal, the relevant inquiry is whether the trial judge’s reasons reveal that the law was correctly applied. Judges are presumed to know the law, but as made clear in R. v. Eastwood, 2008 ABCA 181, 433 A.R. 239 (Alta. C.A.), that presumption does not operate as “an automatic trump card” (see R. v. P. (W.R.), 2007 ABCA 187, 412 A.R. 176 (Alta. C.A.), at para. 18). 9 Counsel for the Respondent submits that the decision of this Court in R. v. Andrews (1996), 104 C.C.C. (3d) 392 (Alta. C.A.) is dispositive. She relies upon the following statement of Conrad J.A., speaking for the majority (albeit on the issue of impaired driving), at para. 28: ... The question is simply whether the totality of the accused’s conduct and condition can lead to a conclusion other than that his or her ability to drive is impaired to some degree. Obviously, if the totality of the evidence is ambiguous in that regard, the onus will not be met. Common sense dictates that the greater the departure from the norm, the greater the indication that the person’s ability to drive is impaired. For instance, if one is assessing driving conduct, exceeding the speed limit is something that many people do whether or not they have consumed alcohol. Thus, that factor would naturally be less in- dicative of one’s ability to drive being impaired, than would weaving back and forth from lane to lane, or travelling on the wrong side of the road. In the end the test remains, is the ability to drive of the person impaired? [emphasis in original] 10 Counsel for the Respondent concedes that this pronouncement was cited by trial counsel for the Respondent. It follows, in my opinion, that it is arguable that the trial judge must be taken to have been alive to the contention that the Respondent’s negligent driving pattern was equally consistent with a breach of the provisions of the Highway Traffic Act, R.S.A. 2000, c. H-8 and no more, and would, as the Crown argues, have considered other possible causes for the erratic driving. In a nut shell, the Crown contends that the trial judge must have turned his mind to the Rule in Hodge’s Case. 11 A review of the trial transcript evidences that the reasons for judgment at trial were responsive to the case’s live issues and the parties’ key 402 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

arguments: R. v. Walker, [2008] 2 S.C.R. 245 (S.C.C.) at para. 20. In this case, the trial judge carefully and methodically reviewed the evidence and was clearly alive to the reasonable doubt standard. The question to be decided is whether the rule in Hodge’s Case is an essential instruction in a circumstantial case. The Crown submits that there is an abundance of case law that supports the Crown’s contention that the answer to that question is in the negative. In R. v. Griffin, supra, at para. 33, Charron, J., speaking for the majority, stated: We have long departed from any legal requirement for a ‘special instruction’ on circumstantial evidence, even where the issue is one of identification: R. v. Cooper, [1978] 1 S.C.R. 860. The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. Imparting the necessary message to the jury may be achieved in different ways: R. v. Fleet (1997), 120 C.C.C. (3d) 457 (Ont. C.A.), at para. 20. See also R. v. Guiboche, 2004 MBCA 16, 183 C.C.C. (3d) 361, at paras. 108- 10; R. v. Tombran (2000), 142 C.C.C. (3d) 380 (Ont. C.A.), at para. 29. 12 Se also R. v. Cooper, supra, at paras. 36, 47. 13 I conclude that the appeal has arguable merit on the proffered ground that the summary conviction appeal court justice committed a clear error of law that warrants appellate review. 14 Accordingly, I grant leave to appeal on the following question: Did the trial judge err in failing to make express reference in his reasons for judgment or to have regard to the rule in Hodge’s Case? Application granted. MJS Recycling Inc. v. Shane Homes Ltd. 403

[Indexed as: MJS Recycling Inc. v. Shane Homes Ltd.] MJS Recycling Inc. (Appellant / Applicant) and Shane Homes Limited (Respondent / Respondent) and Jayman Masterbuilt Inc., Beattie Homes Ltd. and 923541 Alberta Ltd. (Not Parties to the Appeal) Alberta Court of Appeal Docket: Calgary Appeal 1001-0253-AC 2011 ABCA 221 Clifton O’Brien, Peter Martin JJ.A., Jo’Anne Strekaf J. (ad hoc) Heard: June 17, 2011 Judgment: July 14, 2011 Alternative dispute resolution –––– Submission or agreement to arbitrate — Variation or exclusion of statutory provisions –––– Builders’ group, including respondent corporation S Ltd., were majority owners of appellant corporation M Inc. — M Inc. purchased interest of builders’ group in M Inc. — Purchase agreement provided disputes would be settled by arbitration under Arbitration Act — Parties disagreed as to whether M Inc. was receiving all benefits it was entitled to under purchase agreement — M Inc. and S Ltd., but not other members of builders’ group, entered into arbitration agreement that was to be final, with no right to appeal — Arbitrator concluded S Ltd. had breached purchase agreement — Remedy in arbitrator’s award included other members of builders’ group — M Inc. unsuccessfully brought application to set aside arbitrator’s award — Chambers judge acknowledged arbitrator may have exceeded his jurisdiction — Chambers judge refused to provide remedy because parties agreed to final, non-appealable arbitration — M Inc. appealed chambers judge’s decision — Appeal was allowed — Court had jurisdiction to intervene and grant remedy under s. 45 of Act, notwithstanding what parties provided in their arbitration agreement — Arbitration agreement stated arbitration was conducted pursuant to Act — Arbitrator exceeded his jurisdiction. Alternative dispute resolution –––– Judicial review of arbitration awards — Grounds for review — Miscellaneous –––– Excessive jurisdiction — Builders’ group, including respondent corporation S Ltd., were majority owners of appellant corporation M Inc. — M Inc. purchased interest of builders’ group in M Inc. — Purchase agreement provided disputes would be settled by arbitration under Arbitration Act — Parties disagreed as to whether M Inc. was receiving all benefits it was entitled to under purchase agreement — M Inc. and S Ltd., but not other members of builders’ group, entered into arbitration agreement that was to be final, with no right to appeal — Arbitrator concluded S Ltd. had 404 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

breached purchase agreement — Remedy in arbitrator’s award involved other members of builders’ group — M Inc. unsuccessfully brought application to set aside arbitrator’s award — Chambers judge acknowledged arbitrator may have exceeded his jurisdiction — Chambers judge refused to provide remedy because parties agreed to final, non-appealable arbitration — M Inc. appealed chambers judge’s decision — Appeal was allowed — Arbitrator exceeded his jurisdiction by crafting award beyond scope of arbitration agreement — Arbitrator’s award regarding remedy involved members of builders’ group that were not parties to arbitration agreement — Arbitrator’s award could not be enforced to extent it affected rights and obligations of other builders’ group members. Alternative dispute resolution –––– Judicial review of arbitration awards — Remedies on review — Remission to arbitrator –––– Builders’ group, including respondent corporation S Ltd., were majority owners of appellant corporation M Inc. — M Inc. purchased interest of builders’ group in M Inc. — Purchase agreement provided disputes would be settled by arbitration under Ar- bitration Act — As result of disagreement, M Inc. and S Ltd., but not other members of builders’ group, entered into arbitration agreement that was to be final, with no right to appeal — Arbitrator concluded S Ltd. had breached purchase agreement — Remedy in arbitrator’s award involved other members of builders’ group — M Inc. unsuccessfully brought application to set aside arbitrator’s award — Chambers judge acknowledged arbitrator may have exceeded his jurisdiction — Chambers judge refused to provide remedy because parties agreed to final, non-appealable arbitration — M Inc. appealed chambers judge’s decision — Appeal was allowed — Arbitrator exceeded his jurisdiction — Mat- ter was remitted to arbitrator, pursuant to s. 45(8) of Act, to craft revised award within scope of agreement — Award that was beyond scope of arbitration agreement could not stand — There was no reason for chambers judge to defer to arbitrator who exceeded his jurisdiction — It was not reasonable to interpret parties’ agreement not to appeal as agreement to accept award beyond scope of arbitration agreement. Cases considered: BC Gas Inc. v. Westcoast Energy Inc. (1990), 1990 CarswellBC 1735, [1990] B.C.J. No. 2924 (B.C. S.C.) — followed MJS Recycling Inc. v. Shane Homes Ltd. (2010), 2010 ABCA 376, 2010 CarswellAlta 2399 (Alta. C.A.) — referred to Sherwin-Williams Co. v. Walls Alive (Edmonton) Ltd. (2003), 327 A.R. 386, 296 W.A.C. 386, 2003 ABCA 191, 2003 CarswellAlta 823, 32 C.P.C. (5th) 41, 17 Alta. L.R. (4th) 35 (Alta. C.A.) — referred to Wireless 2000 RF & UWB Technologies Ltd. v. AMS Homecare Inc. (2007), 2007 BCSC 1919, 2007 CarswellBC 3205, 41 B.L.R. (4th) 297, [2007] B.C.J. No. 2858 (B.C. S.C. [In Chambers]) — considered MJS Recycling Inc. v. Shane Homes Ltd. Per curiam 405

Statutes considered: Arbitration Act, R.S.A. 2000, c. A-43 Generally — referred to s. 3 — considered s. 44(2) — considered s. 45 — referred to s. 45(1)(c) — considered s. 45(8) — considered s. 48 — referred to Commercial Arbitration Act, R.S.B.C. 1996, c. 55 s. 30 — referred to

APPEAL by waste management corporation from chambers judge’s decision dismissing corporation’s application to set aside arbitrator’s award.

P.R.S. Leveque for Appellant L.V. Halyn for Respondent

Per curiam: I. Introduction 1 At the end of a lengthy commercial arbitration, the arbitrator exceeded his jurisdiction and made an unenforceable award. The appellant’s counsel, in his opening statement, described the situation as a “mess”. We do not disagree with his characterization. 2 We have decided that the award must be remitted to the arbitrator so that he may craft an award within his jurisdiction. These are our reasons for doing so.

II. Facts 3 The appellant, MJS Recycling Inc. (MJS), is a waste management company which is principally engaged in the business of hauling and recycling construction and demolition waste. 4 The respondent, Shane Homes Limited (Shane), is a major builder of new homes in the Calgary market. Prior to May 2005, Shane and a group of other builders (the Builders’ Group) were the majority owners of MJS. 5 By a Purchase of Common Shares, Purchase of Shareholders’ Loans, and a Redemption of Preferred Shares Agreement (the Purchase Agree- ment), MJS purchased the interest of the Builders’ Group. 406 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

6 The terms of the Purchase Agreement included: (i) MJS was to redeem the preferred shares held by the Build- ers’ Group for the sum of $800,000, to be paid with an in- stalment of $200,000 at closing, and regular monthly payments thereafter; (ii) Shane and the other builders were to provide at least 75% of their waste management contracts to MJS for the three years following the closing, and at least 50% for the suc- ceeding two years, concluding in May 2010; (iii) the monthly instalments of the share redemption price were calculated at 10% of the gross monthly waste removal business of the members of the Builders’ Group. 7 Pursuant to section 22 of the Purchase Agreement, the parties thereto agreed to submit any disputes to arbitration, as follows: In the event any dispute arises between the parties as to the interpretation of this Agreement, including whether or not there has been default under the Agreement and whether or not the default has been remedied, the dispute shall be resolved by way of arbitration under the Arbitration Act of Alberta, RSA 2000, c A-43. 8 Differences arose between the parties about whether MJS was recov- ering the volume of business from the builders that it was entitled to under the Purchase Agreement. MJS asserted that Shane was not meeting its obligation and commenced paying the monthly instalments of the share redemption price — payable to the members of the Builders’ Group — into trust. The remaining balance of the share redemption price, more than $500,000, inclusive of interest, is now held in trust. 9 MJS asserts that Shane was entitled to 25% of the share redemption price, with the remaining balance of 75% owed to other members of the Builders’ Group.

III. Arbitration Proceedings 10 By a notice of arbitration dated March 12, 2007, MJS notified Shane that it requested an arbitration by reason of Shane’s alleged failure to abide by the terms of the Purchase Agreement. Shane, in response, denied its alleged default and counter-claimed for its share of the then out- standing share redemption price. MJS Recycling Inc. v. Shane Homes Ltd. Per curiam 407

11 MJS and Shane agreed upon the selection of an arbitrator and entered into an Arbitration Agreement on September 27, 2007, which contained the following provision: The decision shall be final and binding on the parties. There shall be no right to appeal the decision to the Court of Queen’s Bench on a question of law or otherwise. The decision shall be enforceable in any Court of competent jurisdiction and in the same manner as any other judgment of the said Court. 12 It should be emphasized that neither MJS nor Shane sought the involvement of the other members of the Builders’ Group in the arbitration proceedings. It seems that MJS and Shane considered that the dispute only involved them. Accordingly, the other members of the Builders’ Group were not parties to the Arbitration Agreement, nor did they participate in the subsequent arbitration. 13 By agreement between MJS and Shane, the issues of liability and damages were severed. An arbitration hearing was held on the issue of liability and an award made May 9, 2008. The arbitrator concluded that Shane had breached the Purchase Agreement and that MJS was entitled to damages in an amount to be assessed. He urged the parties to resolve the damages issues between them, but reserved jurisdiction in the event that the parties did not do so. When MJS and Shane failed to agree on the quantum of damages, the arbitrator invited the other members of the Builders’ Group to participate in the damages hearing. Not surprisingly, the other members chose not to become involved at midpoint after findings of liability had already been made. 14 The arbitrator made a Supplementary Award on October 23, 2009. He concluded that MJS’s remedy was limited pursuant to section 4.6 of the Purchase Agreement, which provided, in its amended form, as follows: The Vendors Beattie, Shane and Jayman will pay their invoices pursuant to the waste management contracts contemplated in section 4 on the same timely basis as has been the practice prior to the execu- tion of this Agreement as it is understood by all parties that the Cor- poration relies upon these payments so as to meet their obligations pursuant to section 3.4. If Beattie, Shane and Jayman are not current with their payments, then they will be given 30 days notice to rectify the problem. Should the problem still persist after the expiration of the 30 days notice, it is agreed that all the Corporation’s obligations pursuant to this Agreement will come to an end and the Vendors will discharge their mortgage and security agreement. 408 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

15 The arbitrator explained his decision, as follows: Once MJS elected to trigger the 30 day notice provision against Shane, as they did here, their rights and remedies were limited to those specified in section 4.6. That meant MJS, because of the breach of one of the builders, in this case Shane, would no longer be responsible for any further payments on the balance owing on the $800,000 preferred share redemption debt to the vendors. This was not an un- substantial amount; the calculations provided by counsel for MJS peg the figure at approximately $430,000 in December 2007 when the breach occurred. Although MJS continued to make payments into trust towards repayment of the preferred share debt pursuant to section 3 of the Agreement after December 2007, they were under no legal obligation to do so because, as stated, the Agreement had “come to an end”. 16 The arbitrator then made the following award: 1. MJS, as per section 4.6, is not responsible for any payments to the vendors on the redeemed preferred shares as of De- cember 23, 2006. 2. All monies paid by MJS to the escrow agent ... towards the repayment of the preferred shares after December 23, 2006, in the approximate amount of $430,000, shall be returned by the escrow agent to MJS. 3. The mortgage held on the Janet Property shall be discharged and the Quit Claim deed and Transfer of Land, as well as any other security being held by the vendors under the amended Agreement shall be returned to MJS. 4. Subject to the Orders contained herein, the claim for damages by MJS against Shane as a result of a breach of the Agreement is dismissed.

IV. Queen’s Bench Proceedings 17 MJS applied to the Court of Queen’s Bench for an order setting aside the Supplementary Award pursuant to section 45(1)(c) of the Arbitration Act, RSA 2000, c A-43 (the Act), which provides: On a party’s application, the court may set aside an award of any of the following grounds: ... MJS Recycling Inc. v. Shane Homes Ltd. Per curiam 409

(c) the award deals with a matter in dispute that the arbitration agreement does not cover or contains a decision on a matter in dispute that is beyond the scope of the agreement; 18 MJS applied, in the alternative, for an order granting it leave to appeal the Supplementary Award pursuant to section 44(2) of the Act, which provides: (2) If the arbitration agreement does not provide that the parties may appeal an award to the court on a question of law, a party may appeal an award to the court on a question of law with leave, which the court shall grant only if it is satisfied that (a) the importance to the parties of the matters at stake in the arbitration justifies an appeal, and (b) determination of the question of law at issue will significantly affect the rights of the parties. 19 The chambers judge on March 10, 2010 dismissed MJS’s application. He acknowledged that the arbitrator “may well” have exceeded his jurisdiction and come “to the wrong conclusion”. Further, he found that the arbitration award was not binding on the other members of the Builders’ Group who did not participate in the arbitration, so that “by necessary implication” the award would only be binding on MJS and Shane. 20 The judge refused, however, to provide any remedy to MJS because it “chose to put the dispute to an arbitrator for a final non-appealable decision”. He continued: Parties who are relatively equal in sophistication and experience, as is the case here, must be able to agree on terms and conditions and have them mean something. I believe that fundamentally, arbitrations are founded on contract law and parties should be allowed to manage their arbitrations by agreement.

V. Leave to Appeal 21 On December 7, 2010, an appellate judge granted leave to appeal the decision of the chambers judge pursuant to section 48 of the Act: MJS Recycling Inc. v. Shane Homes Ltd., 2010 ABCA 376, [2011] A.W.L.D. 279 (Alta. C.A.). The appeal was limited to the issue of the arbitrator’s jurisdiction.

VI. Analysis 22 As observed in the judgment granting leave, section 3 of the Act does not allow parties to an arbitration agreement to exclude the operation of 410 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

section 45. That section states: “The parties to an arbitration agreement may agree, expressly or by implication, to vary or exclude any provision of this Act except section ... 45 ...”. Accordingly, the court has jurisdiction to intervene and grant a remedy under section 45, notwithstanding what the parties may have provided in their arbitration agreement. 23 Shane argues, however, that section 3 only applies to arbitrations conducted under the Act, and submits that the application of the Act was excluded in this case by agreement of the parties. There is no merit to this argument. 24 There is no express provision in the Arbitration Agreement made by the parties excluding the operation of the Act. To the contrary, the Purchase Agreement under which the dispute was referred to arbitration expressly provides in section 22, quoted in para 7 above, that the dispute “should be resolved by way of arbitration under the” Act. Moreover, both the Award and the Supplementary Award state on their face that the subject arbitration was conducted pursuant to the Act. 25 MJS argues that the arbitrator incorrectly interpreted section 4.6 of the Purchase Agreement. While MJS in its Arbitration Notice alleged that Shane was in breach of its obligations under section 4.6, including failure to pay invoices in a timely manner or at all, MJS submits that there is nothing in that provision that limits or restricts the damages payable by Shane for the breach of its further obligation to provide a specified volume of its waste management contracts to MJS. 26 We make no determination about the correctness of the arbitrator’s interpretation of the Purchase Agreement. The chambers judge denied leave to appeal the award on a question of law. As pointed out in para. 15 of the leave decision, the Act does not contain a provision allowing an appeal from a refusal by a Queen’s Bench judge to grant leave to appeal an arbitrator’s award on a question of law pursuant to section 44(2) of the Act: Sherwin-Williams Co. v. Walls Alive (Edmonton) Ltd., 2003 ABCA 191 (Alta. C.A.) , at para 14; (2003), 327 A.R. 386 (Alta. C.A.). 27 In short, the issues on this appeal are narrow. First, does the award exceed the arbitrator’s jurisdiction, and second, if so, what remedy, if any, should be given?

Award Exceeds Jurisdiction 28 The chambers judge seemed to accept, and we agree, that in making his award the arbitrator exceeded his jurisdiction. It is useful to examine the arbitrator’s award closely in reaching this conclusion. MJS Recycling Inc. v. Shane Homes Ltd. Per curiam 411

29 The arbitrator found, first, that MJS was not responsible for any of the payments to the members of the Builders’ Group, even though only Shane was before him as a party to the arbitration. He was not entitled to determine the rights of the other builders. Their entitlements were not submitted to him for determination, and his decision that MJS was not required to pay the other builders went beyond the scope of the agreement. 30 The arbitrator then directed that all monies paid by MJS to the escrow agent toward payment of the preferred shares should be returned to MJS. To the extent that the builders, other than Shane, had an interest in these trust monies, this direction was also beyond the scope of the agreement and the arbitrator’s authority. 31 The arbitrator continued by directing that the security held by the Builders’ Group should be returned to MJS. The arbitrator could not, of course, affect the security interests of the builders, other than Shane, and his direction could not be enforced vis-`a-vis the other builders. Once again, therefore, the award went beyond the scope of the agreement.

Remedy 32 The chambers judge refused to grant relief because MJS and Shane had agreed that the arbitrator’s decision would be final, binding and non- appealable. Shane submits that the standard of review is reasonableness, and suggests that the chambers judge exercised a discretion not to interfere with the award. It is noted, in this regard, that the opening words of section 45 are permissive in that they say “the court may set aside an award.” 33 In our view, it is difficult to conceive of any proper basis for allowing an award to stand that is beyond the scope of the arbitration agreement which is the foundation of an arbitrator’s jurisdiction. We are inclined to the view of the British Columbia court in BC Gas Inc. v. Westcoast Energy Inc., [1990] B.C.J. No. 2924, 21 A.C.W.S. (3d) 154 (B.C. S.C.), that it follows as a matter of course that a decision beyond jurisdiction cannot stand. In that case, McColl J. was dealing with section 30 of the Commercial Arbitration Act, RSBC 1996, c 55, which stated that the court “may” set aside or remit on an award in the face of arbitral error. He stated at para 38: I agree with what counsel for the Respondent said that the single issue was whether or not there was an excess of jurisdiction. If the Arbitrator had the jurisdiction to make the decision he did it cannot 412 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

be said that the Petitioner was denied the opportunity to address the issue merely because it had misinterpreted the submission. The opportunity to be heard was there. Counsel simply did not avail itself of the opportunity. If on the other hand the Arbitrator went beyond his jurisdiction it hardly matters whether the matter was argued at all. The decision cannot stand. [emphasis added] 34 Likewise, in Wireless 2000 RF & UWB Technologies Ltd. v. AMS Homecare Inc., 2007 BCSC 1919, 41 B.L.R. (4th) 297 (B.C. S.C. [In Chambers]), the court observed that errors going to jurisdiction do not allow for judicial deference to the tribunal (see paras 21-22). 35 It is not reasonable in this case to interpret the agreement of the parties not to appeal as an agreement to accept an award beyond the scope of the arbitration agreement. There was no reason for the chambers judge to defer to an arbitrator who had exceeded his jurisdiction. This is particularly so in this instance as an award that cannot be enforced deprives MJS of a remedy notwithstanding the finding of Shane’s liability. In our view, MJS is entitled to a remedy under section 45 of the Act. 36 What then is the appropriate remedy under section 45? Subsection (8) grants the court the right of remission of an award to the arbitral tribunal instead of setting it aside. J. Kenneth McEwan and Ludmila B. Herbst discuss this situation in Commercial Arbitration in Canada, (Aurora On- tario: Canada Law Book, 2004-) at 10-52-3: Whether an award is to be remitted to the arbitrator or set aside is in the court’s discretion. This discretion is exercised in accordance with established principles and in light of the circumstances of the case. In general: 3. Those principles permit remission where the subject matter of the reference has not been considered and adjudicated upon as fully or in a manner which the parties were entitled to expect and where it would be inequitable to allow an award to take effect without some further consideration by the arbitrator. [citation from: Miller Civil Engineering Ltd. National Rivers Authority (Yorkshire Region), QBD July 1997, as cited in Norwest Holst Con- struction Ltd. v. Co-operative Wholesale Society Ltd. [1997] E.W.H.C. Technology 356, at para. 36] 37 It appears, as well, that fashioning the appropriate remedy depends, to some extent, upon whether the arbitral tribunal lacked jurisdiction in its authority to act, or merely exceeded its jurisdiction. Brian Casey and Ja- MJS Recycling Inc. v. Shane Homes Ltd. Per curiam 413

net Mills draw this distinction in Arbitration Law of Canada: Practice and Procedure:(New York: Juris Publishing Inc, 2005). They comment, at 335-6, that “where there is simply no jurisdiction in the tribunal to make the award in the first place”, then the provision entitling the court to remit the award to the arbitral tribunal and give directions “can have no application.” 38 Casey and Mills contrast this to the situation where there is an excess of jurisdiction. They state at 336: Contrasted with the above [lack of jurisdiction] are situations in which the arbitration agreement is valid, the tribunal is properly constituted, but the award deals with a dispute that the agreement did not cover, or contains a decision on a matter that is beyond the scope of the agreement. In such a case, two things can occur. Firstly, under the domestic Acts, the court may sever that part of the award that is impugned and let the balance of the award stand, or under either the domestic Acts or Model Law the court may remit the offending matter back to the tribunal with directions. 39 In the case at hand, the arbitrator had jurisdiction between the parties, but his award exceeded his jurisdiction by attempting to affect the rights of other builders not before him. In these circumstances, we are of the view that the matter should be remitted to the arbitrator so that he can craft a revised award within the scope of his powers. Specifically, we anticipate that his new award will reflect that MJS is only not responsible for payment to Shane as of December 23, 2006, not to the other members of the Builders’ Group; that Shane has no interest in the monies paid into trust; and that Shane only is directed to release its interest in the security. 40 Finally, we wish to make it clear that in remitting the matter to the arbitrator we do not intend to tie his hands with respect to the award to be made against Shane in this arbitration. We observe that his award was expressly made “subject to the Orders”therein which we have ruled exceeded his jurisdiction. It may be that he will now see fit to grant other or further damages payable by Shane, or to grant other equitable relief, as a result of its breach. The parties agreed to submit their dispute to arbitration and provided that the new award is within the arbitrator’s jurisdiction, we are inclined to the view of the chambers judge that they should “live with it”. 41 As the chambers judge found, the other members of the Builders’ Group cannot be bound by the award made in the subject arbitration proceedings between MJS and Shane. As a practical result, this means that MJS and the other builders are left to settle or to arbitrate any issues 414 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

remaining between them. While it would have been desirable, no doubt, to have had all issues resolved between the parties in one arbitration, neither MJS nor Shane elected to involve the other parties at the outset. This is unfortunate as MJS, at least, now faces the expense of further proceedings and the risk of inconsistent findings. However, this Court can only correct the award in this case insofar as it exceeded the arbitrator’s jurisdiction.

VII. Conclusion 42 The appeal is allowed and the award is remitted to the arbitrator to make an award in accordance with the directions herein and within his jurisdiction. Appeal allowed. 61508 Alberta Ltd. v. Alberta (Minister of Transportation) 415

[Indexed as: 61508 Alberta Ltd. v. Alberta (Minister of Transportation)] 61508 Alberta Ltd., Mary Dwernychuk and William Dean Dwernychuk (Applicants) and Her Majesty the Queen in Right of The Province of Alberta as Represented by the Minister of Transportation (Respondent) Kenneth E. Edey and Jo Ann Edey (Applicants) and Her Majesty the Queen in Right of the Province of Alberta as Represented by the Minister of Transportation (Respondent) Alberta Court of Queen’s Bench Docket: Grande Prairie 0904-00672, 0904-00671 2011 ABQB 258 R.J. Hall J. Heard: March 22-23, 2011 Judgment: April 12, 2011 Real property –––– Expropriation — Valuation — Value to owner — Gen- eral principles –––– Defendant provincial government wishing to improve highway expropriated strips of land within three quarter sections of property owned by plaintiffs D and strip of land within one quarter section of property owned by plaintiffs E — As per agreements entered into between plaintiffs and government pursuant to s. 30 of Expropriation Act, government paid $700 per acre to D and E, but plaintiffs had leave to apply to Alberta Land Compensation Board or court to have value of expropriated land determined and adjusted if necessary — Company bidding for highway contract to make improvements to highway purchased remainder of plaintiffs’ affected quarter sections at $2,500 per acre, contingent upon being awarded project — Plaintiffs D had purchased quarter section of farmland nearby to their property at $650 per acre — D and E brought actions for additional compensation for expropriated property — Actions dismissed — Only method of arriving at fair market value (FMV) was to take FMV of whole of each parcel and then attribute per acre value to acreage taken — Rule developed in leading expropriation case was applied in order to determine FMV — Expert valued D quarter at $800.00 per acre and E quarter at $700.00 per acre; each was based upon direct comparison appraisal approach — Court accepted expert’s methodology and conclusions — To consider price at which there would be willing seller of expropriated strips of land would result in expropriating authority being held to ransom — Only means that could be employed was notional means developed and authorized by courts — In present 416 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

case, “element of special economic advantage to the owner” not otherwise compensated had not been demonstrated. Real property –––– Expropriation — Valuation — Evidence of value — Comparable sales or offers — General principles –––– Defendant provincial government wishing to improve highway expropriated strips of land within three quarter sections of property owned by plaintiffs D and strip of land within one quarter section of property owned by plaintiffs E — As per agreements entered into between plaintiffs and government pursuant to s. 30 of Expropriation Act, government paid $700 per acre to D and E but plaintiffs had leave to apply to Alberta Land Compensation Board or court to have value of expropriated land determined and adjusted if necessary — Company bidding for highway contract to make improvements to highway purchased remainder of plaintiffs’ affected quarter sections at $2,500 per acre, contingent upon being awarded project — Plaintiffs D had purchased quarter section of farmland nearby to their property at $650 per acre — D and E brought actions for additional compensation for expropriated property — Actions dismissed — Expert valued D quarter at $800.00 per acre and E quarter at $700.00 per acre; each was based upon direct comparison appraisal approach — Court accepted expert’s methodology and conclusions — Value of expropriated lands could not be determined by reference to sales of land by plaintiffs to bidding company, according to s. 45 of Expropriation Act, because sale price was result of particular nature of highway project development and contract terms and sales were so influenced by motivational factor as to be inappropriate comparisons. Cases considered by R.J. Hall J.: Alliance Pipeline Ltd. v. Smith (2011), 328 D.L.R. (4th) 1, 56 C.E.L.R. (3d) 161, 16 Admin. L.R. (5th) 157, 2011 SCC 7, 2011 CarswellNat 202, 2011 Car- swellNat 203, 102 L.C.R. 1, [2011] S.C.J. No. 7, [2011] A.C.S. No. 7 (S.C.C.) — considered Arychuk v. Calgary Power Ltd. (1978), 93 D.L.R. (3d) 588, 13 A.R. 365, 8 Alta. L.R. (2d) 354, 1978 CarswellAlta 188, 17 L.C.R. 200 (Alta. C.A.) — referred to Cochin Pipe Lines Ltd. v. Rattray (1980), [1981] 1 W.W.R. 732, 1980 Carswell- Alta 289, 27 A.R. 32, 117 D.L.R. (3d) 442, 22 L.C.R. 198 (Alta. C.A.) — considered Dell Holdings Ltd. v. Toronto Area Transit Operating Authority (1997), 1997 CarswellOnt 78, 1997 CarswellOnt 79, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) 31 O.R. (3d) 576 (headnote only), 7 R.P.R. (3d) 1, 36 M.P.L.R. (2d) 163, 45 Admin. L.R. (2d) 1, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) 142 D.L.R. (4th) 206, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) 206 N.R. 321, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) 60 L.C.R. 81, (sub nom. Toronto 61508 Alberta Ltd. v. Alberta (Minister of Transportation) 417

Area Transit Operating Authority v. Dell Holdings Ltd.) 97 O.A.C. 81, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) [1997] 1 S.C.R. 32, (sub nom. Toronto Area Transit Operating Authority v. Dell Holdings Ltd.) [1997] S.C.J. No. 6 (S.C.C.) — distinguished Kerr v. Alberta (Minister of Transportation) (No. 1) (1981), 119 D.L.R. (3d) 386, 29 A.R. 541, 22 L.C.R. 179, 1981 CarswellAlta 513 (Alta. C.A.) — referred to Moller v. Alberta (Minister of Transportation & Utilities) (2004), 2004 CarswellAlta 1426, 2004 ABCA 340, 85 L.C.R. 81 (Alta. C.A.) — considered Patson Industries Ltd. v. Calgary (City) (1983), 1983 CarswellAlta 99, 26 Alta. L.R. (2d) 235, 48 A.R. 272, 30 L.C.R. 190 (Alta. C.A.) — considered R. v. Bonaventure Sales Ltd. (1980), 22 L.C.R. 164, 1980 CarswellAlta 356, [1980] A.J. No. 114 (Alta. C.A.) — followed Rainbow Country Estates Ltd. v. Whistler (Resort Municipality) (2010), 100 L.C.R. 77, 2010 CarswellBC 537, 2010 BCSC 300 (B.C. S.C.) — referred to Runnymede Development Corp. v. Ontario (Minister of Housing) (1978), 14 L.C.R. 289, 88 D.L.R. (3d) 123, 1978 CarswellOnt 734, 20 O.R. (2d) 559 (Ont. Div. Ct.) — referred to Schou v. Alberta (Minister of Environmental Protection) (2009), 96 L.C.R. 123, 2009 CarswellAlta 109, 2009 ABQB 51 (Alta. Q.B.) — referred to Thompson v. Alberta (Minister of Environment) (2007), 422 A.R. 102, 415 W.A.C. 102, 2007 ABCA 411, 2007 CarswellAlta 1697, 94 L.C.R. 22 (Alta. C.A.) — considered Statutes considered: Expropriation Act, R.S.A. 2000, c. E-13 Generally — referred to s. 30 — referred to s. 42 — referred to s. 42(2) — considered s. 42(2)(a) — considered s. 42(2)(b) — considered s. 42(2)(c) — considered s. 42(2)(d) — considered s. 45 — considered s. 45(c) — considered Railway Act, R.S.C. 1970, c. R-2 Generally — referred to 418 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

Surface Rights Act, R.S.A. 2000, c. S-24 Generally — referred to

ACTIONS by property owners for additional compensation for expropriated property.

Darryl Carter, Q.C. for Plaintiffs Christopher D. Holmes for Defendants

R.J. Hall J.:

1 In these two matters the Provincial Government has expropriated strips of land within 3 quarter sections of property owned by the Dwernychuk Plaintiffs, and a further strip of land within 1 quarter section of property owned by the Edey Plaintiffs. Agreements were entered into between the Plaintiffs and the Alberta Government pursuant to s. 30 of the Expropriation Act; the Alberta Government paid $700 per acre to each of the Plaintiff groups but the Plaintiffs had leave to apply to the Alberta Land Compensation Board or the Court to have the value of the expropriated land determined and adjusted if necessary, such value to be determined as at an effective date of October 31, 2008. The sole issue being tried in the Dwernychuk action is the value of the expropriated land. In the Edey action there is an additional issue as to whether further compensation should be paid to the Edeys, on the basis that they claim to have lost revenue from access rights they had granted in relation to producing a well on land they leased from the government. They allege that, after access issues arose between the oil company and the government, the oil company shut down the well. 2 These matters were heard consecutively, then argued together. Ac- cordingly these reasons apply with respect to both actions. 3 The Alberta government determined that it wished to realign High- way 727 and improve grades and crossings over Howard Creek and the Ksituan River. The alignment chosen would go through the Plaintiffs’ lands. 4 The Alberta Government expropriated strips of land from the Plain- tiffs’ farm lands. The project was of considerable size. Mainly because of changes in grades, some 2.2 million cubic metres of overburden had to be permanently removed from the highway right of way. Bidding contractors were told that the proper disposal of the overburden was their responsibility; that is, the contractor would have to move the overburden 61508 Alberta Ltd. v. Alberta (Minister of Transportation) R.J. Hall J. 419

to a place of its choosing, and, of course, it would have to own or acquire the right to dispose the overburden upon the location selected. 5 Sureway Construction Management Ltd. determined that it would bid for the job. It determined that the best practice for it to follow was to purchase lands adjacent to the project, upon which it planned to spread the overburden and then replace the topsoil to reclaim those lands to their previous use as farm lands. Many prospective contractors including Sureway, approached the Plaintiffs. Sureway entered into agreements to purchase the remainder of the Plaintiffs’ affected quarter sections at $2,500 per acre, such agreements being contingent upon the project contract being awarded to Sureway. The project was so awarded, and Sureway completed the purchases, and used the land for the purposes described above. 6 The purchase contracts between Sureway and the Dwernychuk Plain- tiffs provided an option to the Plaintiffs, to buy back the land once it had been reclaimed, at a price of $ 650.00 per acre, or alternatively at the market price applicable on November 30, 2010 less a discount of 10%. 7 Evidence was given by Mr. Brock Helm, who was the Land Manager for the Sureway Group of Companies in 2009. Mr. Helm’s evidence is that, in making the bid for the project Sureway factored in the anticipated cost of purchase of the land less the anticipated resale price, passing that cost onto the Government of Alberta in its contract bid. After initial dis- cussions with the Plaintiffs, Sureway had anticipated being able to purchase the land at $2,000 per acre, but in fact the eventual purchases were completed at $2,500. Mr. Helm acknowledges that therefore, Sureway “ate” the extra $500 per acre, since it was not anticipated in Sureway’s bid. 8 After Sureway had approached the Dwernychuk Plaintiffs with a view to making these purchases, the Dwernychuks were approached by one Erickson who offered to pay $3,000 an acre for the same lands, without conditions; and if he did not complete the purchase he would forfeit a $10,000 deposit. The Dwernychuk Plaintiff’s accepted that offer. Erick- son then approached Sureway, seeking to sell to Sureway at an even higher price. Sureway, however, did not deal with Erickson; Erickson did not complete his purchase from the Dwernychuks; Erickson forfeited that deposit; and the agreements referred to above were entered into between the Dwernychuk Plaintiffs and Sureway. 9 The Edey Plaintiffs were similarly approached by a number of contractors looking to purchase their quarter section of land through which 420 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

the highway would run. The Edey Plaintiffs eventually contracted with Sureway, to sell that property for $2,500 per acre, with an option to re- purchase at $500 per acre once the land had been used for placement of the overburden and then restored/reclaimed by Sureway as farmland. 10 On May 15, 2007 the Dwernychuk Plaintiffs purchased a quarter section of farmland nearby to their property from the Jarvis’, who were re- portedly going through a divorce. The price per acre paid by Dwernychuks to the Jarvis’ approximated $650 per acre for the bare land.

Expert Evidence 11 The Province called expert evidence from Mr. James Wall, whose expert qualifications as a land appraiser were admitted by Counsel for the Plaintiffs. 12 In respect to the Dwernychuk lands, Mr. Wall had prepared an appraisal of the expropriated land on SW 27-78-7 west of the 6th meridian, dated July 2006. He did not appraise the expropriated land on the other Dwernychuk quarter sections. Nor did he perform an appraisal of the expropriated lands effective on October 31, 2008, the date the s. 30 contracts identify as being the date at which value is to be determined. 13 In respect of the Edey lands, Mr. Wall prepared an appraisal of the expropriated parcel as at July 2006, using the same process that he followed for the Dwernychuk lands. 14 Mr. Wall gave evidence that he determined the highest and best use of the subject property to be agricultural lands. He followed his understanding of the law of expropriation, which in these cases was to apply the Bonaventure Rule and the Kerr case, and determined the value of the quarter section in which the expropriated land was located, on the basis that its highest and best use was agricultural. As he was able to find sales of comparable property in the general area, he determined to use the Di- rect Comparison Approach, analysing recent transactions in the market- place, then adjusting them to fit the subject property. By this means he determined market value per acre for sales of a quarter section or more of agricultural land in the area. He determined that, as at July 2006 the Dwernychuk quarter section and hence the expropriated parcel in that quarter section, had a value of $700 per acre. Mr. Wall had not prepared an updated report regarding the Dwernychuk lands. He stated at trial however, that from July 2006 to 2008 he was of the opinion that the 61508 Alberta Ltd. v. Alberta (Minister of Transportation) R.J. Hall J. 421

value of the Dwernychuk quarter section, and hence the expropriated parcel, had increased to be $800 per acre. 15 With respect to the Edey land, Mr. Wall determined a value per acre of the Edey quarter as being $600 per acre when he did his 2006 Ap- praisal. In May 2008 he performed an updated appraisal and adjusted the value of the Edey quarter section to be $700 per acre, based upon new comparable sales which had occurred between the times of the two appraisals. 16 Mr. Wall was robustly cross examined on these opinions by Counsel for the Plaintiffs. It was established that Mr. Wall had not considered sales of any parcels similar in size to the expropriated parcels; that Mr. Wall had not used comparables such as properties subdivided for use as a site for a Country Residence; and that Mr. Wall had not performed an Income Approach assessment of the value of the Expropriated land. Mr. Wall was criticized for following his understanding of the law, in applying what is known as the Bonaventure Rule, whereby he determined the highest and best use for the parent parcel, determined a market value for the parent parcel, then applied that market value on a pro rata basis to the expropriated property. 17 Mr. Wall conceded that, other than in an Expropriation setting, there would not likely be any “willing purchaser” of such narrow strips of lands; and that, in the Expropriation Process there was no “willing ven- dor”. Mr. Wall also agreed that, in 2009 he had appraised a subdivided 14.74 acre parcel of bare land on the Dwernychuk quarter, S.W. 27-78-7- W6 as a “Country Residential” parcel at $3,300 per acre for the bare land. 18 Mr. Wall was criticized by Counsel for not applying or discussing in his report, the requirements of s. 42(2)(c) of the Expropriation Act; in particular for not evaluating the “value to the Owner”. 19 The Plaintiffs called no expert evidence in support of their claims.

Position of the Parties Position of the Plaintiffs 20 The Plaintiffs maintain that their claim is “for the value of the land taken”. They urge the Court to place great emphasis on the “Value to the Owner” in determining the appropriate compensation for the expropriated land. They challenge the practice followed by the expert Mr. Wall in his appraisal, of following the approach to valuation set out by the Al- 422 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

berta Court of Appeal in R. v. Bonaventure Sales Ltd. (1980), 22 L.C.R. 164 (Alta. C.A.), and maintain that Mr. Wall has failed to consider, or properly consider section 42(2)(c) of the Expropriation Act, that is to determine the value to the owner of any elements of special economic advantage to the owner. They argue that a value for the expropriated parcels has in fact been determined... the price which a willing seller and a willing buyer would strike for the sale... by the sales by the Plaintiffs to Sureway, at $2,500 per acre. 21 They are further critical of Mr. Wall for not including in his appraisal, a consideration of the Income Approach to determining value, that is to say, to determine the income the expropriated land would have produced. However, the Plaintiffs have not provided any of their own expert evidence as to value based upon the Income Approach, choosing instead to maintain that the value was set by the sales to Sureway, at $2,500 per acre, which, they say, makes expert opinion evidence unnecessary. 22 The Plaintiffs maintain that the fact that the Dwernychuks purchased the Jarvis land at $650 per acre, in 2007 is irrelevant to this determination, on the basis that while it shows what the Dwernychuks were willing to pay for that land, it does not assist in determining the price at which the Dwernychuks or the Edeys would have been willing to sell the expropriated parcels. 23 The Plaintiffs maintain that no buyer other than the expropriating authority would pay anything for such narrow strips of land as these, and therefore it is impossible to determine a price at which a willing buyer and willing seller would enter into such a transaction. 24 The Plaintiffs maintain that the decision of the Alberta Court of Ap- peal in Bonaventure, (supra) should not be considered to be good law, arguing that subsequent cases have largely ignored it, and that it does not accord with the rationale applicable to expropriation enunciated in Dell Holdings Ltd. v. Toronto Area Transit Operating Authority (1997), 60 L.C.R. 81 (S.C.C.). 25 The Edey Plaintiffs additionally claim that as a result of the expropriation of their lands and the building of the highway, Birchcliff Energy Ltd. lost access to the well site at NE 3-79-7-W6M. The Edey Plaintiffs maintain that Birchcliff could not negotiate satisfactory alternate access to the site with the provincial government, and decided to shut down the well. The Edey Plaintiffs were receiving $2,500 per year from Birchcliff for their consent to Birchcliff for access to the well site. The Edey’s maintain they will lose these payments “for at least 10 years to come”. 61508 Alberta Ltd. v. Alberta (Minister of Transportation) R.J. Hall J. 423

Position of the Province of Alberta 26 The Province references s.45 of the Expropriation Act, and argues that, but for the development of the highway, the lands purchased from the Plaintiffs by Sureway would not have been purchased by them, nor would they have fetched the amount of $2,500 per acre, far in excess of what has been put forth as fair market value. The Province relies upon the wording of s.45 of the Act, and case law that discusses it. Even if this particular circumstance is not specifically dealt with in the wording of s. 45 of the Act, the Province maintains that the same principle applies. 27 As to the Plaintiff’s argument that valuation should not proceed on the basis of determining the highest and best use of the Parent Parcel, but rather an evaluation of the strip of land expropriated, the Province relies upon the decision of the Alberta Court of Appeal in Bonaventure (supra) and cases following it. 28 The Province argues that the evaluation performed by Mr. James Wall should be accepted as having been properly performed, reasonable and accurate, and notes that the Plaintiffs have not provided any expert opinion evidence as to the value of the expropriated lands. 29 With regard to the Edeys’ claim for compensation for lost revenue from the oil well being shut in, the Province argues that Birchcliff had the right at any time to shut down operations and discontinue its payments to the Edeys; that the reason that Birchcliff decided to shut down has not been proven to be the building of the highway; and that damages are speculative and unproven.

Findings and Reasons Issue # 1 - Valuation of the Expropriated Lands 30 The Supreme Court of Canada in Dell Holdings Ltd. v. Toronto Area Transit Operating Authority, supra, discusses expropriation and the principles of interpretation of expropriation legislation: (para. 20) The expropriation of property is one of the ultimate exer- cises of governmental authority. To take all or part of the person’s property constitutes a severe loss and a very significant interference with a citizen’s private property rights. It follows that the power of an expropriating authority should be strictly construed in favour of those whose rights have been affected. (para. 23) It follows that the Expropriation Act should be read in a broad and purposive manner in order to comply with the air of the Act to fully compensate a land owner whose property has been taken. 424 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

31 The facts in Dell are not comparable with those in this case; however the principle enunciated above is governing. In the recent case of Alliance Pipeline Ltd. v. Smith, 2011 SCC 7 (S.C.C.), Justice Fish refer- enced para. 23 of Dell, confirming it to express the law in Canada. 32 The Expropriation Act, c. E-13, R.S.A. 2000 has not materially changed from the Expropriation Act 1974 (Alta.) c. 27, which was the Act under consideration by the Alberta Court of Appeal in Bonaventure (supra). The facts in Bonaventure bear great similarity to the facts in this case. Strips of land were expropriated from larger parcels. At issue was whether the strips of land were to be valued by comparison to similar sized sales of land, or whether the parent parcel was to be valued and the per acre value of the parent parcel being then applied to value the expropriated strips. Chief Justice McGillivary, writing for the Court stated, at pp 164 and 165 as follows: A strip of land was expropriated from the west boundary of two properties owned by the respondent. It was taken for road building. In valuing the strips the Land Compensation Board took the acreage involved in the two properties, 3.43 acres in one case and .30 acres in the other, added them together and proceeded to value the resulting 3.73 acres as if they were a small holding that was being sold to a willing buyer by a willing seller. We are all of the opinion that under the provisions of the present Expropriation Act, 1974 (Alta.), c. 27, and on the facts of this expropriation that that treatment is not permissible. What was expropriated were two strips off the boundaries of the two parcels. They were not, of course, willing buyers or willing sellers of those strips. It is not reasonable to convert those strips into a saleable area of land for purposes of evaluation of that land per se. While the Board notes that the configuration is imposed by the Minister this does not mean that the strips should be treated as something they are not. We are all of the opinion that the only method of arriving at the fair market value was to take a fair market value of the whole of each parcel and then attribute the per acre value to the acreage taken. The fact that the land is classified for light industrial use, and development is taking place, are factors to be weighed in valuing the acreage to get a per acre value which can be applied to the land taken. It does not enable the Board to convert the strips into saleable small parcels and then put a value on to that parcel per se, as if it were something that could be sold as a small parcel. In the result, we are of the opinion that the Board proceeded on a wrong principle in two respects: (a) in treating the land taken from two parcels as one; and (b) in equating strips 61508 Alberta Ltd. v. Alberta (Minister of Transportation) R.J. Hall J. 425

taken with saleable acreage and treating it as saleable acreage to be valued by itself. As to the strip taken from the smaller parcel, it seems clear that the Board accepted the valuation placed on that parcel but reduced it by an arbitrary percentage when combining it with the strip taken from the larger parcel and arrived at $15,000 per acre for each of the total 3.73 acres taken. As to the strip taken from the larger parcel, it is not clear to us from the Board’s reasons as to how they arrived at the $75,000 per acre as a value of the acreage taken. We do not know whether they based it on Mr. Jellis’ value of $75,000 or whether, while not rejecting the valuations of $40,000 and $42,000 per acre made by the other evaluators on a per acreage basis for the entire acreage, concluded that as only 3.43 acres was being taken from that parcel those evaluators were wrong in applying the total area values to the strips. It is also pointed out that the other evaluators did not have present to their minds certain factors that would undoubtedly increase the valuation per acre that they put on the entire large holding. We, under the circumstances, direct that the matter go back to the Board to arrive at a valuation based on the fair market value of each of the two properties at the effective date of the expropriation and to attribute a per acre value arrived at to the land taken from each parcel. 33 The approach set out in Bonaventure has come to be known as the Bonaventure Rule for expropriation valuations. It is the rule that Mr. Wall followed in performing his appraisal. 34 Nothing submitted to me by Plainitffs’ Counsel, in argument or authorities persuades me that Bonaventure does not continue to be good law in Alberta. I do not consider that the Bonaventure Rule is in any way in conflict with the broad and purposive approach called for in Dell. 35 The Alberta Court of Appeal did distinguish Bonaventure in Kerr v. Alberta (Minister of Transportation) (No. 1) (1981), 22 L.C.R. 179 (Alta. C.A.), but only where the usages of the parcel from which land was being expropriated were not homogeneous. That circumstance does not arise here. 36 In Patson Industries Ltd. v. Calgary (City) (1983), 30 L.C.R. 190 (Alta. C.A.), the Alberta Court of Appeal stated at para. 19: Undoubtedly, part of a tract of land is to be valued on the basis of the value of that part if solid comparable sales are available. The key, 426 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

however is that reliable comparable sales must be available; if not, the per acre approach is permissible. 37 No mention was made of Bonaventure in that decision. In this case before me I note that no solid comparable sales in size or shape are in evidence; nor, according to Mr. Wall, were any available. While there is evidence of an appraised value of Dwernychuk’s Country Residence parcel of 14.74 acres, it was a subdivided parcel prepared for use as a Coun- try Residence and for those reasons it is not a “solid comparable”. 38 In Cochin Pipe Lines Ltd. v. Rattray (1980), 22 L.C.R. 198 (Alta. C.A.) the Alberta Court of Appeal discusses its reasoning in Bonaventure and confirms that reasoning. 39 Cases cited by the Plaintiffs arising out of interpretations of the Sur- face Rights Act, or the Railway Act dealt with legislation which is worded considerably differently from the Expropriation Act, and provide little assistance. 40 The Plaintiffs argue that the Alberta Court of Appeal in Moller v. Alberta (Minister of Transportation & Utilities) (2004), 85 L.C.R. 81 (Alta. C.A.) ordered the Land Compensation Board to consider the sale of a potentially comparable parcel smaller than the parent parcel and closer to the size of the expropriated parcel. From that decision, the Plaintiffs urge that the Alberta Court of Appeal has moved away from Bonaventure. I do not read that decision in that way; rather I see the Court in that case requiring the Board to consider that sale before making its determination; this might be seen as confirming Patson, (supra), requiring the Board to consider whether that sale is a “reliable, comparable sale.” I do not see it as abandoning Bonaventure. 41 In the result, and having particular regard for the homogeneous nature of the lands, and that the expropriation here is of strips of land, much as was the case in Bonaventure, I consider that the Bonaventure Rule is to be applied in order to determine fair market value. 42 I note that the Expropriation Act has not materially changed its wording over the years between the decision in Bonaventure and now. I cannot but think that the Court of Appeal understood and applied a broad and purposive approach to directing full compensation in Bonaventure. 43 Mr. Wall has provided his opinion that, as at approximately May 2008 the value of the Dwernychuk quarter was $800.00 per acre; and the value of the Edey quarter was $700.00 per acre; each based upon his Direct Comparison appraisal approach. While I do not have an appraisal as at October 1, 2008 on either property, and I have no appraisal of the 61508 Alberta Ltd. v. Alberta (Minister of Transportation) R.J. Hall J. 427

other two quarters of the Dwernychuk lands, I am satisfied that, if one applies the Bonaventure Rule and the Direct Comparison Approach, these values as at May 2008 would also be appropriate values as at Octo- ber 1, 2008. The Plaintiffs have offered no contrary evidence, other than the price at which they sold to Sureway, to which I shall return. 44 Mr. Wall concedes that a different approach that he might have considered but did not is the Income Approach; under which the appraiser values the income stream from the appraised property and from that income stream he extrapolates a value. Mr. Wall was of the opinion that the income stream method is not employed by buyers and sellers of agricultural land and therefore did not seem appropriate to him. Counsel for the Plaintiffs was critical of the fact that no such appraisal was performed by Mr. Wall. However, neither was such an Income Stream Appraisal performed for the Plaintiffs, nor did the Plaintiff offer any evidence as to income stream from the expropriated property. 45 As no income stream nor income stream appraisal has been presented to rebut Mr. Wall’s opinion, I accept the methodology utilized by Mr. Wall and the conclusions as to value, set out above. 46 The Plaintiffs maintain that the whole appraisal process is a fiction, since in the expropriation scenario there is no willing seller, only a willing buyer; yet the appraiser purports to appraise based on the price at which a willing buyer and a willing seller would strike a bargain. 47 Indeed, the concept is notional. But to consider the price at which there would be a willing seller of expropriated strips of land would result in the expropriating authority being held to ransom. The only means that can be employed, is the notional means developed and authorized by the Courts; in this case the Alberta Court of Appeal in Bonaventure where the Court noted, (p.164), “they were not of course, willing buyers and willing sellers of those strips.” That is to say, the Court recognized the argument urged upon me by Plaintiffs’ Counsel when reaching its decision. 48 The Plaintiffs maintain that the appraiser has failed to properly consider s. 42(2)(c) of the Expropriation Act. S. 42(2) reads as follows: 42 (2) When land is expropriated, the compensation payable to the owner must be based on: (a) the market value of the land, (b) the damages attributable to disturbance, 428 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

(c) the value to the owner of any elements of special economic advantage to the owner arising out of or incidental to the owner’s occupation of the land to the extent that no other provision is made for its inclusion, and (d) damages for injurious affection. 49 No matters relating to 42(2)(b) or (d) are in issue in this case. Obvi- ously 42(2)(a) is in issue. The Plaintiffs maintain that s. 42(2)(c) needs to be considered when determining the value, to the owner, of the land expropriation. 50 Is there, in this case, “any element of special economic advantage to the owner” not otherwise compensated? None has been demonstrated to me. Mr. Dwernychuk says he would have preferred not to be expropriated, nor to sell to Sureway. However his preference, if accepted by the Court, would not amount to an element of special economic advantage. Therefore the market value of the land expropriated is the appropriate measure in this case, pursuant to s. 42 of the Act. 51 The Plaintiff then argues that, using the “en bloc” or Bonaventure Rule approach, I should determine market value at $2,500.00 per acre, on the basis that it is the price at which a willing buyer (Sureway) agreed to purchase the parent parcels from willing sellers (the Plaintiffs). 52 The agreements with Sureway were entered into after the effective date of October 31, 2008. I may take those sales into consideration even though they are subsequent to the valuation date, but I must take care in assigning weight: New Law of Expropriation, Coates & Waque, Carswell 1986, p. 15 - 55; The Law of Expropriation and Compensation in Can- ada (2nd) 1992 pp. 106 - 107. 53 The question that must be determined is whether theses sales to Sureway are representative of market value of the lands? Section 45 of the Expropriation Act provides, in part, as follows: 45 In determining the value of the land, no account may be taken of (c) any increase or decrease in the value of the land resulting from the development or the imminence of the development in respect of which the expropriation is made or from any expropriation or imminent prospect of expropriation. 61508 Alberta Ltd. v. Alberta (Minister of Transportation) R.J. Hall J. 429

54 This section was considered by the Alberta Court of Appeal in Thompson v. Alberta (Minister of Environment), 2007 ABCA 411 (Alta. C.A.), at paras. 8 and 9: 8 Applying this principle [of statutory interpretation], the object of the section is to place the owner in the same economic position after the taking as he would have been had it not occurred. This is to ensure that neither the expropriating authority nor the owner receives a windfall, nor suffers an unfair loss. Interpreting the object that way would retain harmony with the overall context of the Act as well as serving legislative intent that s. 45 enacted the ‘Pointe Gourde Rule’ and its converse: Pointe Gourde Quarrying & Transport Co. v. Sub- Intendent of Crown Lands, [1947] A.C. 565 (Trinidad & Tobago P.C.) and Melwood Units Pty. v. Commissioner of Main Roads (1978), [1979] A.C. 426 (Australia P.C.) at p. 434; E. Todd, The Law of Expropriation and Compensation in Canada, 2nd Ed., [Toronto: Carswell, 1992] at pp. 158 to 171; K.J. Boyd, Expropriation in Can- ada - a Practitioner’s Guide, [Aurora: Canada Law Book, 1988] at pp. 27-28. 9 As for giving the wording its grammatical and ordinary sense consistent with the object, context and intent, each of the subsections of s. 45, thus read, convey the idea that the expropriated land should not have its value changed by reason of new plans or development occa- sioned by the fact of expropriation. The parties agree that by virtue of s. 45 the value of the expropriated land is the highest and best use of the land as if the expropriation did not exist and thus had no effect on its value. The difference between the parties turns on the effect of expropriation being disregarded in valuing the land. See also Runnymede Development Corp. v. Ontario (Minister of Hous- ing) (1978), 14 L.C.R. 289 (Ont. Div. Ct.); Schou v. Alberta (Minister of Environmental Protection), 2009 ABQB 51 (Alta. Q.B.) at para. 125; Arychuk v. Calgary Power Ltd. (1978), 17 L.C.R. 200 (Alta. C.A.) at para. 26. 55 In this case the price at which the Plaintiffs were able to sell their property to Sureway was a direct result of the project for which lands were being expropriated. But for the development, the price obtained by the Plaintiffs would have been wholly unattainable. Sureway’s evidence is that it purchased the property at that price because of the economics of the highway development project. 56 If those sales were to be used for a Direct Comparison appraisal they would have to be drastically discounted to account for the motivation factor. The great motivation to Sureway was the location of the lands 430 ALBERTA LAW REPORTS 53 Alta. L.R. (5th)

directly proximate to the project, and the fact that the bidding process allowed Sureway to pass that cost on to the government of the Province in its contract price. See Rainbow Country Estates Ltd. v. Whistler (Resort Municipality), 2010 BCSC 300 (B.C. S.C.) for a discussion of such motivational factor. 57 In the result I conclude that the sales of land by the Plaintiffs to Sureway are not permitted to be considered under s. 45 of the Act, because the sale price was the result of the particular nature of the Highway Project Development and contract terms; that in any event of s. 45, those sales are so influenced by the motivational factor discussed above as to be inappropriate comparisons; and that the value of the lands expropriated cannot be determined by reference to those sales. 58 I conclude that the expropriated Dwernychuk lands have a value, as at October 31, 2008, of $800 per acre and the expropriated Edey lands have a value, as at October 31, 2008, of $700 per acre. That is the expert evidence before me. I am buttressed in this decision by the fact that the Dwernychuk Plaintiffs paid $650 per acre for their purchase of the Jarvis land in 2007; a figure close to, but lower than, the value determined by Mr. Wall for the subject parcels, and a far cry from the $2,500 per acre amount urged by the Plaintiffs. 59 I now turn to the Edeys’ claim for compensation for the loss of reve- nues from the Birchcliff well access payments. The Court has no evidence from Birchcliff as to why it has decided to shut down the well; whether it was shut down because Birchcliff could no longer gain satisfactory access to it, or the cost of access was too great, or whether the well had become uneconomic, or any other reason. The agreement between Birchcliff and the Edeys was that Birchcliff would pay an annual fee to the Edeys for so long as Birchcliff wished to exercise access rights granted by the Edeys; there was no term certain, or commitment beyond year to year. Birchcliff apparently no longer wishes to exercise access rights. The Edeys have failed to provide satisfactory evidence as to any causal connection between the expropriation and Birchcliff decision; any right to be paid for a term which has been abrogated by the expropriation; nor proper quantification of damages. The Edeys claim for compensation under this heading is dismissed. 60 Counsel may speak to me regarding costs and interest if agreement cannot be reached. Action dismissed.