ADMINISTRATIVE LAW REPORTS Fifth Series/Cinqui`Eme S´Erie Recueil De Jurisprudence En Droit Administratif

ADMINISTRATIVE LAW REPORTS Fifth Series/Cinqui`eme s´erie Recueil de jurisprudence en droit administratif

VOLUME 99 (Cited 99 Admin. L.R. (5th))

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[Indexed as: Bergeron v. Canada (Attorney General)] Mich`ele Bergeron, Appellant and Attorney General of Canada, Respondent Federal Court of Appeal Docket: A-141-13 2015 FCA 160, 2015 CAF 160 Johanne Trudel, David Stratas, Wyman W. Webb JJ.A. Heard: June 4, 2014 Judgment: July 7, 2015* Human rights –––– Practice and procedure — Judicial review — Standard of review –––– Applicant B made two human rights complaints under Canadian Human Rights Act — In view of human rights commission, complaints had already been addressed and remedied in two grievances B brought — Commission dismissed complaints — B brought application to set aside commission’s decision — Federal court examined evidentiary record and investigator’s report and concluded that outcome reached by commission was acceptable and defensible — B’s application for judicial review was dismissed — B appealed dismissal — B alleged that commission’s decision must be set aside because it was unreasonable and was product of procedural unfairness — Appeal dismissed — In assessing reasonableness, reviewing courts are not limited to asking whether reasons are acceptable and defensible but are also to assess whether outcome reached is acceptable and defensible — There were no grounds for setting aside commission’s decision on basis of reasonableness — Law concerning standard of review for procedural fairness currently unsettled — Decision based on deficient investigation can be characterized as one that is not substantively acceptable or defensible because it is based on incomplete information, thereby triggering standard of review for substantive defects — There is currently “a

* Leave to appeal denied at Bergeron v. Canada (Attorney General) (2016), 2016 CarswellNat 1073, 2016 CarswellNat 1074 (S.C.C.). 2 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th) jurisprudential muddle” — However, there were no submissions received on issue in present case — In present case, even on standard of correctness, there was no ground to interfere with commissioner’s decision on basis of procedural fairness — Process was fair — Investigator was neutral and sufficiently thorough for purposes of issue before her, namely whether grievance was adequate recourse. Human rights –––– Practice and procedure — Judicial review — Ap- peal –––– Applicant B made two human rights complaints under Canadian Human Rights Act — In view of human rights commission, complaints had already been addressed and remedied in two grievances B brought — Commission dismissed complaints — B brought application to set aside commission’s decision — Federal court examined evidentiary record and investigator’s report and concluded that outcome reached by commission was acceptable and defensible — B’s application for judicial review was dismissed — B appealed dismissal — B alleged that commission’s decision must be set aside because it was unreasonable and was product of procedural unfairness — Appeal dismissed — Commission’s task under s. 41(1)(d) of Act is to screen out complaints where adequate redress elsewhere has been had — Concept of adequacy is highly judg- mental and fact-based, informed in part by policy that commission should not devote scarce resources to matters that have been, in substance, addressed elsewhere or that could have been addressed elsewhere — Commission’s decision was well within its margin of appreciation and could not be set aside. Human rights –––– Practice and procedure — Judicial review — Grounds — Irrelevant considerations –––– Employer staffed applicant employee B’s position after she had been on long-term disability benefits for seven years and had declined employer’s proposals returning to work — B commenced two grievances, which B’s union chose not to have adjudicated — B commenced two complaints under Canadian Human Rights Act — Canadian Human Rights Commission made decisions dismissing both complaints — Commission’s reasons for both decisions excerpted analysis section of report prepared by commission with respect to first complaint — That report concluded that B’s human rights allegations were addressed through grievance process — B brought applications for judicial review of first decision and second decision — Application regarding first decision was dismissed — Application regarding second decision was granted — Second decision was quashed and remitted to commission — It was held that commission’s overt reasons in second part of second decision were, on their face, irrelevant and unintelligible because issues were different in two complaints — Federal court found that report prepared for second complaint could not be looked on as commission’s reasons for second decision — Federal court held that first decision was well within range of possible outcomes and should not be disturbed — It was federal court’s finding that in first decision, commission adopted entire analysis section of first re- Bergeron v. Canada (Attorney General) 3

port, and there was no reason to believe that it did not mean to adopt entire report — It was therefore appropriate to consider entire first report, and not merely excerpt expressly adopted by commission, when assessing first decision — B appealed dismissal of application regarding first decision — Appeal dismissed — There was no basis to set aside decision on basis of unreasonableness or lack of procedural fairness. Human rights –––– Practice and procedure — Commissions, tribunals and boards of inquiry — Jurisdiction — Where other remedy available –––– Employer staffed applicant employee B’s position after she had been on long- term disability benefits for seven years and had declined employer’s proposals returning to work — B commenced two grievances, which B’s union chose not to have adjudicated — B commenced two complaints under Canadian Human Rights Act — Canadian Human Rights Commission report concluded that B’s human rights allegations were addressed through grievance process — B brought application for judicial review — It was commission’s view that grievance procedure adequately addressed issues raised in complaint — In federal court, B submitted that grievance process was not independent: grievance officer was associate deputy minister — Federal court rejected submission — Applica- tion was dismissed — B appealed dismissal — Appeal dismissed — Grievance and complaint were essentially same — Grievance allowed for further discussions to take place, pursuit of which might have resulted in return-to-work plan and other accommodations for B — However, B declined to pursue them — B could have referred her grievance to adjudication but she did not — Since neither union nor B referred grievance to adjudication, decision of grievance officer became final — There was no basis to set aside decision on basis of unreasonableness or lack of procedural fairness. Cases considered by David Stratas J.A.: A.T.A. v. Alberta (Information & Privacy Commissioner) (2011), 2011 SCC 61, 2011 CarswellAlta 2068, 2011 CarswellAlta 2069, 339 D.L.R. (4th) 428, 28 Admin. L.R. (5th) 177, 52 Alta. L.R. (5th) 1, [2012] 2 W.W.R. 434, (sub nom. Alberta Teachers’ Association v. Information & Privacy Commissioner (Alta.)) 424 N.R. 70, (sub nom. Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association) [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 519 A.R. 1, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 539 W.A.C. 1 (S.C.C.) — referred to Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 2013 SCC 36, 2013 CarswellNat 1983, 2013 CarswellNat 1984, 52 Admin. L.R. (5th) 183, 360 D.L.R. (4th) 411, 16 Imm. L.R. (4th) 173, [2013] S.C.J. No. 36, 446 N.R. 65, [2013] 2 S.C.R. 559 (S.C.C.) — referred to 4 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

Air Canada v. Canadian Transportation Agency (2014), 2014 FCA 288, 2014 CarswellNat 5323, 2014 CAF 288, 2014 CarswellNat 6598, (sub nom. Air Canada v. Greenglass) 468 N.R. 184 (F.C.A.) — referred to Anderson v. Canada (Attorney General) (2013), 2013 FC 1040, 2013 Car- swellNat 3678, 2013 CF 1040, 2013 CarswellNat 5137, 71 Admin. L.R. (5th) 1 (F.C.) — referred to Berberi v. Canada (Attorney General) (2013), 2013 FC 99, 2013 CarswellNat 174, 2013 CF 99, 2013 CarswellNat 614, 10 C.C.E.L. (4th) 33, [2013] F.C.J. No. 113 (F.C.) — distinguished British Columbia (Securities Commission) v. McLean (2013), 2013 SCC 67, 2013 CarswellBC 3618, 2013 CarswellBC 3619, 366 D.L.R. (4th) 30, [2014] 2 W.W.R. 415, (sub nom. McLean v. British Columbia Securities Commis- sion) 452 N.R. 340, 53 B.C.L.R. (5th) 1, (sub nom. McLean v. British Columbia (Securities Commission)) [2013] 3 S.C.R. 895, [2013] S.C.J. No. 67, (sub nom. McLean v. British Columbia Securities Commission) 347 B.C.A.C. 1, (sub nom. McLean v. British Columbia Securities Commission) 593 W.A.C. 1, 64 Admin. L.R. (5th) 237 (S.C.C.) — referred to British Columbia (Workers’ Compensation Board) v. British Columbia (Human Rights Tribunal) (2011), 2011 SCC 52, 2011 CarswellBC 2702, 2011 Car- swellBC 2703, 25 Admin. L.R. (5th) 173, 337 D.L.R. (4th) 413, [2011] 12 W.W.R. 1, 23 B.C.L.R. (5th) 1, 421 N.R. 338, 95 C.C.E.L. (3d) 169, (sub nom. B.C. (W.C.B.) v. Figiola) 2012 C.L.L.C. 230-001, (sub nom. British Columbia (Workers’ Compensation Board) v. Figliola) [2011] 3 S.C.R. 422, 311 B.C.A.C. 1, 529 W.A.C. 1, [2011] S.C.J. No. 52, [2011] A.C.S. No. 52, (sub nom. British Columbia (Workers’ Compensation Board) v. Figliola) 73 C.H.R.R. D/1 (S.C.C.) — followed Canada (Minister of Transport, Infrastructure and Communities) v. Farwaha (2014), 2014 FCA 56, 2014 CarswellNat 457, (sub nom. Farwaha v. Canada (Minister of Transport, Infrastructure and Communities)) 455 N.R. 157, 2014 CAF 56, 2014 CarswellNat 3008, (sub nom. Farwaha v. Canada (Minister of Transport, Infrastructure and Communities)) 303 C.R.R. (2d) 246, [2014] F.C.J. No. 227 (F.C.A.) — referred to Catalyst Paper Corp. v. North Cowichan (District) (2012), 2012 SCC 2, 2012 CarswellBC 17, 2012 CarswellBC 18, 11 R.P.R. (5th) 1, [2012] 2 W.W.R. 415, 26 B.C.L.R. (5th) 1, 340 D.L.R. (4th) 385, 93 M.P.L.R. (4th) 1, [2012] S.C.J. No. 2, 425 N.R. 22, 316 B.C.A.C. 1, 537 W.A.C. 1, 34 Admin. L.R. (5th) 175, [2012] 1 S.C.R. 5, [2012] A.C.S. No. 2 (S.C.C.) — referred to Construction Labour Relations Assn. (Alberta) v. Driver Iron Inc. (2012), 2012 SCC 65, 2012 CarswellAlta 1955, 2012 CarswellAlta 1956, D.T.E. 2012T- 839, [2012] S.C.J. No. 65, 43 Admin. L.R. (5th) 1, 352 D.L.R. (4th) 487, (sub nom. Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720) 437 N.R. 202, (sub nom. Construction Labour Relations v. Driver Iron Inc.) 2013 Bergeron v. Canada (Attorney General) 5

C.L.L.C. 220-003, (sub nom. Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720) 539 A.R. 17, (sub nom. Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720) 561 W.A.C. 17, (sub nom. Construction Labour Relations v. Driver Iron Inc.) [2012] 3 S.C.R. 405, (sub nom. Construction Labour Relations v. Driver Iron Inc.) 228 C.L.R.B.R. (2d) 24, [2012] A.C.S. No. 65 (S.C.C.) — considered English-Baker v. Canada (Attorney General) (2009), 2009 FC 1253, 2009 Car- swellNat 4288, [2009] F.C.J. No. 1604, 2009 CF 1253, 2009 CarswellNat 6611 (F.C.) — referred to Forest Ethics Advocacy Assn. v. National Energy Board (2014), 2014 FCA 245, 2014 CarswellNat 4233, 465 N.R. 152, 2014 CAF 245, 2014 CarswellNat 6533 (F.C.A.) — considered Gravelle c. Canada (Procureur g´en´eral) (2006), 2006 CF 251, 2006 Car- swellNat 416, 2006 FC 251, 2006 CarswellNat 4466, 60 Admin. L.R. (4th) 179 (F.C.) — considered Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) (2012), 2012 SCC 10, 2012 CarswellNS 124, 2012 CarswellNS 125, 31 Ad- min. L.R. (5th) 179, 94 M.P.L.R. (4th) 1, 343 D.L.R. (4th) 385, 428 N.R. 107, [2012] S.C.J. No. 10, 316 N.S.R. (2d) 1, [2012] A.C.S. No. 10, [2012] 1 S.C.R. 364, 74 C.H.R.R. D/7 (S.C.C.) — referred to Khela v. Mission Institution (2014), 2014 SCC 24, 2014 CarswellBC 778, 2014 CarswellBC 779, [2014] S.C.J. No. 24, 368 D.L.R. (4th) 630, 64 Admin. L.R. (5th) 171, 9 C.R. (7th) 1, 455 N.R. 279, 307 C.C.C. (3d) 427, 2014 CSC 24, (sub nom. Khela v. Mission Institution (Warden)) 599 W.A.C. 91, (sub nom. Mission Institution v. Khela) [2014] 1 S.C.R. 502, (sub nom. Mission Institution v. Khela) 306 C.R.R. (2d) 66, (sub nom. Khela v. Mission Institution (Warden)) 351 B.C.A.C. 91 (S.C.C.) — considered Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 82 Admin. L.R. (4th) 1, [2009] S.C.J. No. 12, 77 Imm. L.R. (3d) 1, 385 N.R. 206, 304 D.L.R. (4th) 1, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339 (S.C.C.) — referred to Leahy v. Canada (Minister of Citizenship and Immigration) (2012), 2012 FCA 227, 2012 CarswellNat 3419, 2012 CAF 227, 2012 CarswellNat 5145, 12 Imm. L.R. (4th) 179, 47 Admin. L.R. (5th) 1, 438 N.R. 280, [2012] F.C.J. No. 1158, [2012] A.C.F. No. 1158, [2014] 1 F.C.R. 766 (F.C.A.) — referred to Maritime Broadcasting System Ltd. v. Canadian Media Guild (2014), 2014 FCA 59, 2014 CarswellNat 474, 455 N.R. 115, [2014] F.C.J. No. 236, 373 D.L.R. (4th) 167, 70 Admin. L.R. (5th) 1 (F.C.A.) — referred to 6 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

McIlvenna v. Bank of Nova Scotia (2014), 2014 FCA 203, 2014 CarswellNat 4381, 2014 CAF 203, 2014 CarswellNat 5723, 466 N.R. 195 (F.C.A.) — referred to N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 SCC 62, 2011 CarswellNfld 414, 2011 CarswellNfld 415, D.T.E. 2012T-7, 340 D.L.R. (4th) 17, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 213 L.A.C. (4th) 95, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, 97 C.C.E.L. (3d) 199, 38 Admin. L.R. (5th) 255 (S.C.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 2008 SCC 9, 2008 CarswellNB 124, 2008 CarswellNB 125, D.T.E. 2008T-223, [2008] S.C.J. No. 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, 64 C.C.E.L. (3d) 1, 69 Imm. L.R. (3d) 1, 69 Admin. L.R. (4th) 1, 372 N.R. 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] A.C.S. No. 9, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, 2008 CSC 9 (S.C.C.) — considered Re:Sound v. Fitness Industry Council of Canada (2014), 2014 FCA 48, 2014 CarswellNat 395, 455 N.R. 87, 2014 CAF 48, 2014 CarswellNat 2858, 120 C.P.R. (4th) 287, [2014] F.C.J. No. 215, 72 Admin. L.R. (5th) 1, [2015] 2 F.C.R. 170 (F.C.A.) — considered Serrano Lemus v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FCA 114, 2014 CarswellNat 1362, 372 D.L.R. (4th) 567, [2014] F.C.J. No. 439, (sub nom. Lemus v. Canada (Minister of Citizenship and Immigra- tion)) 461 N.R. 310, 27 Imm. L.R. (4th) 28, 2014 CAF 114, 2014 Car- swellNat 4859 (F.C.A.) — distinguished Shaw v. Royal Canadian Mounted Police (2013), 2013 FC 711, 2013 Car- swellNat 2222, 2013 CF 711, 2013 CarswellNat 3154, 435 F.T.R. 176 (Eng.) (F.C.) — referred to Sketchley v. Canada (Attorney General) (2005), 2005 FCA 404, 2005 Car- swellNat 4194, 2006 C.L.L.C. 230-002, 2005 CAF 404, 2005 CarswellNat 5119, 344 N.R. 257, [2005] F.C.J. No. 2056, 263 D.L.R. (4th) 113, [2006] 3 F.C.R. 392, 44 Admin. L.R. (4th) 4, 56 C.H.R.R. D/490 (F.C.A.) — considered Bergeron v. Canada (Attorney General) 7

Slattery v. Canada (Human Rights Commission) (1994), [1994] 2 F.C. 574, (sub nom. Slattery v. Canadian Human Rights Commission) 73 F.T.R. 161, (sub nom. Slattery v. Canada (Human Rights Commission) (No. 1)) 22 C.H.R.R. D/205, 1994 CarswellNat 271, 1994 CarswellNat 271F, [1994] F.C.J. No. 181 (Fed. T.D.) — followed Slattery v. Canada (Human Rights Commission) (1996), 118 F.T.R. 318 (note), 205 N.R. 383, 1996 CarswellNat 348, [1996] F.C.J. No. 385 (Fed. C.A.) — referred to Soci´et´e Radio-Canada c. Syndicat des Communications de Radio-Canada (FNC-CSN) (2005), 2005 CF 466, 2005 CarswellNat 923, 2005 FC 466, 2005 CarswellNat 2939, (sub nom. Canadian Broadcasting Corp. v. Syndicat des communications de Radio-Canada (FNC-CSN)) 272 F.T.R. 116 (Eng.) (F.C.) — considered Vaughan v. R. (2005), 2005 SCC 11, 2005 CarswellNat 675, 2005 CarswellNat 676, 2005 C.L.L.C. 220-027, [2005] S.C.J. No. 12, 250 D.L.R. (4th) 385, (sub nom. Vaughan v. Canada) 331 N.R. 64, (sub nom. Vaughan v. Canada) [2005] 1 S.C.R. 146, (sub nom. Vaughan v. Canada) 138 L.A.C. (4th) 1, 41 C.C.E.L. (3d) 159, EYB 2005-86470, 2005 CSC 11 (S.C.C.) — referred to Statutes considered by David Stratas J.A.: Canadian Human Rights Act, R.S.C. 1985, c. H-6 Generally — referred to s. 2 — referred to s. 3 — referred to s. 7 — referred to s. 14(1)(c) — referred to s. 15(2) — referred to s. 41 — referred to s. 41(1)(d) — referred to Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2 Generally — referred to s. 208(2) — referred to s. 209 — referred to

APPEAL from judgment reported at Bergeron v. Canada (Attorney General) (2013), 2013 FC 301, 2013 CarswellNat 724, 2013 CF 301, 2013 CarswellNat 1190, 56 Admin. L.R. (5th) 1 (F.C.), dismissing application for judicial review of dismissal of human rights complaint.

David Yazbeck, for Appellant Anne McConville, for Respondent 8 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

David Stratas J.A.:

1 Ms. Bergeron appeals from the judgment dated March 25, 2013 of the Federal Court (per Justice Zinn): 2013 FC 301 (F.C.). 2 In that judgment, the Federal Court determined two applications for judicial review. In those applications, Ms. Bergeron sought to set aside a decision of the Canadian Human Rights Commission. In that decision, the Commission dismissed two human rights complaints Ms. Bergeron made under the Canadian Human Rights Act, R.S.C. 1985, c. H-6. In the Commission’s view, they had already been addressed and remedied in two grievances Ms. Bergeron brought. 3 In the Federal Court, Ms. Bergeron succeeded in one of her applications for judicial review (file T-316-12). The respondent did not appeal to this Court. That matter is not before us. 4 The other application for judicial review brought by Ms. Bergeron (file T-315-12) is before us. The Federal Court dismissed Ms. Bergeron’s application. She now appeals to this Court. She alleges that the Commis- sion’s decision must be set aside because it is unreasonable. She adds that the Commission’s investigation was not sufficiently thorough and so the Commission’s decision was the product of procedural unfairness. 5 In my view, the Commission’s decision was both reasonable and procedurally fair. Therefore, I would dismiss the appeal with costs.

A. The facts (1) The taking of leave 6 Ms. Bergeron was a lawyer at the Department of Justice from March 1999 to May 2001. She developed chronic fatigue syndrome. The De- partment granted her sick leave, disability leave and, later, extensions to her leave. During her leave, she received long-term disability payments.

(2) Discussions about a return to work 7 In 2005, roughly four years later after her leave began, Ms. Bergeron raised the possibility of returning to work with the Department. Her manager received a medical certificate supporting her return to work. 8 The Department sent Ms. Bergeron to a Health Canada physician for an assessment. After receiving input, that physician recommended that Ms. Bergeron should gradually return to full-time work over a period of seven months. Bergeron v. Canada (Attorney General) David Stratas J.A. 9

9 Ms. Bergeron’s physician and her psychiatrist commented on this return-to-work plan. Her physician agreed with the plan for the most part; he wanted monthly health assessments to be included in the return-to- work schedule. Ms. Bergeron’s psychiatrist found the recommendation of the Health Canada physician “eminently reasonable and fair.” 10 With these comments, the Health Canada physician provided his final recommendation to the Department of Justice. He maintained his original recommendation that Ms. Bergeron return to work but added that if she could not fulfil her work requirements or if “additional concerns” arose, she should stop work. 11 Ms. Bergeron had concerns about that addition to the recommendation. She also expressed concern about the date of her return to full-time work. Her physician echoed those concerns. Her psychiatrist, originally satisfied with the proposal, expressed a preference for more flexibility in the return-to-work plan. However, the Health Canada physician did not change his recommendation. 12 Matters stood there until 2007. In March, April, and August 2007, a manager at the Department invited Ms. Bergeron to meet and discuss her return to work. Ms. Bergeron refused these invitations. The proposed date of one of the meetings was too soon. And she wanted to have an agreement in place before returning to work. 13 Further, in July and August 2007, the manager sent letters proposing dates for Ms. Bergeron’s return to work. Ms. Bergeron refused to agree to any dates because she felt she would be putting her health at risk.

(3) The Department’s final offer 14 In May 2008, the Department gave Ms. Bergeron an offer to return to work on the basis of the recommendation of the Health Canada physician. This was a final offer, in the sense that the Department informed her that if she did not accept it, her position would be filled by someone else. As matters turned out, this was not the last offer the Department made. 15 The Department’s May 2008 offer removed all references to full-time hours and stated that any decision to stop work would be made only after consulting with the human resource department, the insurance company, and Ms. Bergeron’s physicians. 10 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

16 Ms. Bergeron rejected this offer. At the end of June 2008 — seven years after Ms. Bergeron had been away from work — the Department informed her that it intended to fill her position.

(4) Ms. Bergeron starts proceedings 17 In response, Ms. Bergeron filed two grievances with the Department and filed two complaints with the Commission under the Canadian Human Rights Act. For present purposes, only the grievance and the complaint that is the subject-matter of the Federal Court’s decision under appeal — her complaint of September 26, 2008 — shall be described.

(5) The grievance and the relevant complaint compared 18 The grievance and the relevant complaint cover essentially the same subject-matter: • The grievance. Ms. Bergeron complained of her manager’s “ongoing discriminatory conduct” since 2005, in particular the manager’s “consistent and persistent failure to provide [her] with ability-appropriate accommodations.” She also complained about the Department’s actions in staffing her position. She founded the grievance “on the application of Sections 2, 3, 7, 14(1)(c) and 15(2) of the Canadian Human Rights Act.” In submissions filed in support of the grievance, she characterized the Department’s failure to accommodate her return to work and the decision to staff her position as “disciplinary action.” She sought the cessation of the Department’s efforts to staff her position, restoration to her position with a view to discussing “an approach to this issue which is equitable, acceptable to both parties and non-discriminatory in nature,” and compensatory relief. • The complaint. Ms. Bergeron alleged that the Department discrim- inated against her on the basis of disability by failing to accommodate her and by staffing her position. Specifically, the Department refused to allow her to come back to work on the basis of the plan she developed with her physician and psychiatrist. She also at- tacked a Treasury Board policy that maintained disabled persons on a priority staffing list for only one year as discriminatory. She cited various sections of the Canadian Human Rights Act. She said that the discrimination caused her mental distress and aggravated her physical symptoms. Bergeron v. Canada (Attorney General) David Stratas J.A. 11

(6) Events following the launching of proceedings 19 In February 2009, after Ms. Bergeron had issued her complaint and launched her grievance, the Department extended her leave period for another two months and offered her a position in her old unit and a return to work based on her own physician’s plan. She could consult a physician of her own choice regarding the return-to-work plan. In exchange, the Department asked her to discontinue her various proceedings. Ms. Bergeron refused.

(7) The relevant grievance decision 20 The grievance officer, the Associate Deputy Minister of Justice, found no violation of the Canadian Human Rights Act. However, she upheld Ms. Bergeron’s grievance in part. 21 For Ms. Bergeron, this was no small win. It will be recalled that Ms. Bergeron sought the cessation of efforts to staff her position and restoration to her position in the Department with a view to discussing “an approach to this issue which is equitable, acceptable to both parties and non-discriminatory in nature.” The grievance officer essentially granted that relief: she authorized a further five month period of leave without pay to allow discussions to take place concerning a return-to-work plan. She placed no restrictions on the return-to-work plan that Ms. Bergeron could propose and could discuss with the Department. 22 Ms. Bergeron did not accept this. Instead, two days before her recently-extended leave expired, she demanded that the Department pay damages and costs.

(8) The grievance decision becomes final 23 Ms. Bergeron’s union declined to exercise its right under the Public Service Labour Relations Act, S.C. 2003, c. 22 to refer her grievance to adjudication. 24 Ms. Bergeron could have referred her grievance to adjudication but she did not. As mentioned above, Ms. Bergeron characterized the De- partment’s failure to accommodate her and to fill her position as a “disciplinary action” and “disguised discipline.” An employee subject to disciplinary action can refer her grievance against that disciplinary action to adjudication without the union’s support or representation as long as the grievance does not involve the interpretation or application of a collec- tive agreement or arbitral award: Public Service Labour Relations Act, section 209. Since neither the union nor Ms. Bergeron referred the griev- 12 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

ance to adjudication, the decision of the grievance officer became final. Ms. Bergeron has never explained why she did not take her grievance further.

(9) A further offer 25 In June 2010, the Department offered Ms. Bergeron the options of resigning, retiring or applying for early retirement on medical grounds. She rejected all of these options. In October 2010, the Department termi- nated Ms. Bergeron’s employment.

(10) The Commission’s investigation of the complaint 26 The Commission assigned an investigator to look into Ms. Bergeron’s complaint. The investigator invited the parties to make submissions on whether the grievance process adequately addressed the issues raised in the complaint. If so, then the complaint would be “trivial, frivolous, vex- atious or...in bad faith” within the meaning of paragraph 41(1)(d) of the Canadian Human Rights Act. The investigator specifically asked the parties to address eight relevant factors. 27 Submissions of the parties followed. The investigator considered the submissions and issued a report. The report recommended that the complaint be dismissed under paragraph 41(1)(d) of the Canadian Human Rights Act because, in the words of the Act, the “allegations of discrimination in the complaint were addressed through a review procedure otherwise reasonably available to the complainant.”

(11) Events following the investigator’s report 28 The investigator invited submissions on the report. Ms. Bergeron filed two sets of submissions. 29 The Commission appointed a conciliator to try to settle the complaint. The conciliation was unsuccessful. 30 After the unsuccessful conciliation, Ms. Bergeron asked for a further opportunity to file submissions on the investigator’s report. Although the parties had already exchanged submissions, the Commission granted Ms. Bergeron’s request. She filed a further ten pages of submissions on the investigator’s report.

(12) The Commission’s decision 31 The investigator’s report, the parties’ submissions and some relevant documents were forwarded to the Commission for decision. Bergeron v. Canada (Attorney General) David Stratas J.A. 13

32 The Commission accepted the recommendation of the investigator, adopting the analysis portion of the investigator’s report, and dismissed the complaint under paragraph 41(1)(d) of the Canadian Human Rights Act. In the Commission’s view, the grievance procedure adequately addressed the issues raised in the complaint.

(13) Judicial review proceedings in the Federal Court 33 Ms. Bergeron applied to the Federal Court to set aside the Commis- sion’s decision. Her primary ground of attack was the unreasonableness of the Commission’s decision. 34 The Federal Court conducted reasonableness review of the Commis- sion’s decision. In assessing whether the Commission’s decision fell within a range of acceptable and defensible outcomes, it held that the range of acceptability and defensibility was quite broad. In its words, the Commission should be given “great latitude” in assessing whether another procedure, here the grievance proceedings, adequately addressed the issues in the complaint (at paragraph 39). 35 The Federal Court examined the evidentiary record and the investigator’s report and concluded that the outcome reached by the Commission was acceptable and defensible. In its view, the evidentiary record “amply support[ed]” the Commission’s decision (at paragraph 41): While the Commission’s reasons in the First Decision as contained only in the letter given to the parties are far from perfect; the record before it and, in particular, the Section 40/41 Report prepared for the First Complaint, amply supports its conclusion. Through her First Grievance, Ms. Bergeron had raised virtually the same issues as she raised in the First Complaint; she had asked for virtually the same relief; she had the opportunity to present her case (although she did not even fully avail herself of that right); she received a decision which made a finding on her allegations that there was a failure to accommodate (although, largely because of her own delay, it dismissed them); and she received another “let’s negotiate” back-to- work offer which evidenced that, in fact, the accommodation process was still on-going and that therefore, in law, her complaint was not yet ripe. 36 The Federal Court acknowledged that the complaint differed from the grievance in one respect: it raised the issue whether a Treasury Board policy of “maintaining disabled persons on the priority list for only one 14 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

year” was discriminatory. This was not part of the grievance. However, to the Federal Court, this was of no consequence (at paragraph 42): ...Ms. Bergeron’s submissions in response to the Section 40/41 Re- port prepared for the First Complaint did not seriously pursue the argument that the Treasury Board policy would be dealt with if her complaint was dismissed; nor was that issue pursued by Ms. Ber- geron in this judicial review. Thus, in addition to the fact that whether the exact issues were raised in both processes is but one factor in the 41(1)(d) analysis, the issue of the Treasury Board policy is of negligible significance in this Court’s review of the Commission’s decision. 37 In the Federal Court, Ms. Bergeron submitted that the grievance process was not independent: the grievance officer was the Associate Dep- uty Minister of Justice. The Federal Court rejected her submission (paragraph 43): Moreover, although at all times Ms. Bergeron has complained that the grievance process was not independent and thus cannot be considered to have adequately addressed her complaints, there was no evidence that Ms. Miller was biased or did not decide the grievances impartially; nor, in these circumstances, is the alleged lack of independence in the grievance process sufficient to render the Commis- sion’s decision unreasonable: the alleged deficiencies are speculative, and, again, only relate to one factor in the above-mentioned list of factors. Most if not all of the other factors weighed in favour of dismissing the complaint. 38 The Federal Court concluded that the Commission’s decision fell within a range of acceptable and defensible outcomes and was reasonable. It dismissed Ms. Bergeron’s application for judicial review. 39 Ms. Bergeron now appeals to this Court. She submits that: (1) the Commission’s decision on the merits is unreasonable; and (2) the Commission did not act in a procedurally fair manner because it failed to investigate her complaint thoroughly.

B. Analysis (1) The reasonableness of the Commission’s decision on the merits 40 On appeal, first we must assess whether the Federal Court properly chose reasonableness as the standard of review: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 (S.C.C.) at paragraphs 45-47. Bergeron v. Canada (Attorney General) David Stratas J.A. 15

41 The parties both submit that the Federal Court properly chose reasonableness as the standard of review. I agree. The Commissioner’s decision was a preliminary screening decisions involving fact-based discretion with elements of expertise and specialization. More will be said about this below when discussing the margin of appreciation to which the Commissioner is entitled. For present purposes, decisions of that sort are presumed to be subject to reasonableness review: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), above at paragraphs 51 and 53. I note that relatively recently the Supreme Court also applied the reasonableness standard when reviewing a preliminary screening decision of a provincial human rights commission: Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364 (S.C.C.). 42 Having found that the Federal Court selected the appropriate standard of review — here, reasonableness — this Court must now determine whether the Federal Court properly concluded that the Commissioner’s decision was reasonable. In other words, we are to step into the shoes of the Federal Court and conduct reasonableness review ourselves to see if we agree: Agraira, above at paragraphs 45-47. 43 It is now trite that reasonableness review requires us to assess whether the outcome reached by the administrative decision-maker, here the Commission, falls within a range of acceptability and defensibility: Dunsmuir, above at paragraph 47. 44 The Supreme Court in Dunsmuir deployed the idea of a range of acceptability and defensibility but offered no comments concerning the nature of the range. By its nature, a range can be broad or narrow. How- ever, later Supreme Court cases have confirmed the idea that the range can be broad or narrow depending on the circumstances: Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5 (S.C.C.) at paragraphs 17-18 and 23; Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 (S.C.C.) at paragraph 59; British Columbia (Securities Commission) v. McLean, 2013 SCC 67, [2013] 3 S.C.R. 895 (S.C.C.) at paragraphs 37-41. 45 In the case at bar, the range — or as some cases put it, the margin of appreciation afforded to the Commission — is quite broad owing to the factual and policy-based task of the Commission: Canada (Minister of Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56, 455 N.R. 157 (F.C.A.) at paragraphs 90-99. The Federal Court was correct to state (at paragraph 39) that the Commission gets “great latitude” 16 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

when courts review decisions such as this. This Court has previously said that very thing: Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C. 392 (F.C.A.) at paragraph 38 (screening decisions under section 41 are to be “reviewed with a high degree of deference”). 46 As is shown by the investigator’s report, the Commission had to consider several relevant factors. These factors are mainly questions of fact or factually-suffused questions of mixed fact and law: • What is the nature of the alternate redress mechanism that was used? • Was there a hearing on the issues? • Was the complainant permitted to present his or her case? • Was the decision-maker independent? • What did the decision-maker decide? • Did the decision address all of the human rights issues raised in the complaint? • What remedies were requested in the grievance or other review procedure? • If the complainant was successful (or partially successful) under the alternate redress procedure, what remedies were awarded? Importantly, Ms. Bergeron does not challenge the reasonableness or otherwise of the Commission’s use of these factors in its assessment. 47 Further, in considering the breadth of the margin of appreciation to which the Commission is entitled, I note that the Commission’s task under paragraph 41(1)(d) is to screen out complaints where adequate redress elsewhere has been had. The concept of adequacy is highly judg- mental and fact-based, informed in part by the policy that the Commis- sion should not devote scarce resources to matters that have been, in substance, addressed elsewhere or that could have been addressed elsewhere. On this last-mentioned point, a failure to pursue adequate redress elsewhere or to pursue that adequate redress to its full extent can be in- voked under paragraph 41(1)(d). 48 In this case, the Commission’s decision was well within its margin of appreciation and cannot be set aside. As the Federal Court noted, the record supports the Commission’s decision that the grievance proceedings were an adequate recourse and so the decision was acceptable and defensible. I note the following: Bergeron v. Canada (Attorney General) David Stratas J.A. 17

• The grievance and the complaint are essentially the same (see paragraph 18, above). • The grievance allowed for further discussions to take place, discussions that Ms. Bergeron declined to pursue; pursuit of those discussions might have resulted in a return-to-work plan and other accommodations. • The grievance officer considered the allegations of discrimination which are substantially similar to those in the complaint. The complaint contains the added element of the Treasury Board policy but this is of no moment for the reasons given by the Federal Court at paragraph 42. • There was no evidence the grievance officer was biased or did not decide the grievances impartially. In this regard, I adopt the reasoning of the Federal Court at paragraph 43. • The only evidence Ms. Bergeron offers concerning the grievance officer’s lack of independence is her status as Associate Deputy Minister. But decisions by departmental officials are not necessarily deficient merely because of their status as departmental officials: Vaughan v. R., 2005 SCC 11, [2005] 1 S.C.R. 146 (S.C.C.) at paragraph 37. • To the extent that the grievance officer lacked sufficient independence because she was a senior official in the Department, Ms. Bergeron could have had access to independent adjudication by proceeding from the grievance officer’s decision to independent adjudication under section 209 of the Public Service Labour Rela- tions Act: see paragraph 24, above. If an independent adjudicator mattered to her, she could have taken that step. But she did not. • The independence of the grievance officer is just one of several factors that the Commission had to factually assess, balance and weigh. Absent some unusual consideration, reviewing courts af- ford a good margin of appreciation to administrative decision- makers over their factual assessments, balancings and weighings. 49 Another consideration supporting the reasonableness of the Commis- sion’s decision is the fact that the list of factors considered by the Com- mission — set out at paragraph 46 above — is entirely consistent with the factors set out by the Supreme Court in British Columbia (Workers’ Compensation Board) v. British Columbia (Human Rights Tribunal), 2011 SCC 52, [2011] 3 S.C.R. 422 (S.C.C.). 18 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

50 In Figliola, the Supreme Court identified three factors to be considered when assessing whether a human rights complaint has been appropriately dealt with in an alternative process (at paragraph 37): • Was there concurrent jurisdiction to decide human rights issues? • Was the legal issue in the alternate forum essentially the same as the legal issue in the human rights complaint? • Did the complainant have the opportunity to know the case to meet and have a chance to meet it? 51 The Commission’s decision is consistent with these requirements. The grievance officer had the jurisdiction to decide human rights issues under subsection 208(2) of the Public Service Labour Relations Act. She had the ability to grant adequate relief. The issues in the grievance were essentially the same as those raised in the complaint. And Ms. Bergeron had an opportunity to know the case to meet and the chance to meet it. As the factual summary earlier in these reasons shows, she was able to submit multiple submissions at various times. 52 In support of her submissions on reasonableness, Ms. Bergeron notes that the grievance officer was not an expert in human rights. She adds that the investigator’s report wrongly said that the grievance officer was the Department’s human rights expert. 53 While the report indeed did err in this respect, there is no basis for concluding that the grievance officer was insufficiently knowledgeable to deal with the human rights issues in the grievance. Indeed, reviewing the grievance officer’s reasons, there is no reason to believe that she was incapable — far from it. And there is no legal requirement that human rights issues be placed only before experts and, in particular, only before members of human rights commissions and tribunals. Rather, other administrative decision-makers are allowed to deal with human rights issues. This furthers the objective of fostering a general culture of respect for human rights in the administrative justice system. See generally Fig- liola at paragraph 37. 54 Ms. Bergeron also urges the authority of Berberi v. Canada (Attorney General), 2013 FC 99 (F.C.) upon us. In that case, like here, the Com- mission decided not to deal with certain human rights complaints because they were, like here, the subject of grievances. In Berberi, the grievances were withdrawn by her union at the third level. The Federal Court set aside the Commission’s decision because it failed to consider the adequacy of the grievance process. Bergeron v. Canada (Attorney General) David Stratas J.A. 19

55 In my view, Berberi is distinguishable on its facts. Unlike Berberi, in this case an investigator’s report was before the Commission. Unlike Berberi, the report analyzed, with reference to certain factors, whether the grievance process dealt with the complaint. Also, the grievance process did not arrive at a decision in Berberi; here, it did. Here, the grievance officer looked at the essence of Ms. Bergeron’s human rights complaints — the alleged lack of accommodation, how the return-to-work plan was handled, and the filling of her position — and ruled on it, giving her some relief. In this case — unlike Berberi — the Commission discharged its statutory responsibility to consider the decision on the grievance and the reasons for it and to assess whether it was an adequate recourse. 56 Ms. Bergeron also submits that the reasons of the Commission were inadequate. She complains that the Commission issued only a three page decision that quoted from the investigator’s report and only stated “per- functorily” that her submissions were considered. The reasons do not deal with all of the matters she raised in her submissions. 57 As is well-known, the adequacy of reasons is not an independent ground for setting aside an administrative decision, but rather part of the reasonableness analysis: N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (S.C.C.) at paragraph 14. 58 Further, the reasons of an administrative decision-maker of this type in these circumstances need not address every last matter raised in the submissions put to it: Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. (Newfoundland Nurses, above at paragraph 16; see also Construction Labour Relations Assn. (Alberta) v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405 (S.C.C.) at paragraph 3.) 20 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

59 Further, in assessing reasonableness, reviewing courts are not limited to asking whether the reasons are acceptable and defensible. Rather, reviewing courts are to assess whether the outcome reached is acceptable and defensible: Dunsmuir, above at paragraph 48. In other words, they must assess “whether the decision, viewed as a whole in the context of the record, is reasonable”; Construction Labour Relations, above at paragraph 3; Newfoundland Nurses, above at paragraph 15. There are limits to this though. The Court cannot cooper up an outcome that the Commis- sion itself would not have reached: A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61, [2011] 3 S.C.R. 654 (S.C.C.) at paragraphs 54-55; Serrano Lemus v. Canada (Minister of Citizenship and Immigration), 2014 FCA 114, 372 D.L.R. (4th) 567 (F.C.A.) at paragraphs 27-38. 60 Indeed, where “the Commission adopts an investigator’s recommendations and provides no reasons or only brief reasons,” the reviewing court can treat “the investigator’s report as constituting the Commis- sion’s reasoning” for the purposes of a screening decision under the Can- ada Human Rights Act: Sketchley, above at paragraph 37. In this case, in its reasons the Commission went further. It adopted the recommendation of the investigator and the analysis section of the investigator’s report. 61 When viewed in light of the record, the Commission’s reasons are not so sparse that this Court cannot engage in reasonableness review: Leahy v. Canada (Minister of Citizenship and Immigration), 2012 FCA 227, [2014] 1 F.C. 766 (F.C.A.). Indeed, as the analysis of reasonableness above shows, the Commission’s reasons have not frustrated the Federal Court or this Court from conducting reasonableness review. 62 Viewing the Commission’s reasons in light of the record confirms the reasonableness of its decision. This is not like Lemus, above where there was a real concern about the reasonableness of the decision stemming from the reasons of the decision-maker and the Court felt it could not wade into the record to cooper up the outcome reached. The case before us is different: the reasons of the Commission alone do not raise any particular concerns and the record unequivocally supports the outcome the Commission reached. To borrow the words of the Federal Court (at paragraph 41), the record “amply supports” the outcome. 63 In this case, the brevity of the reasons does not create concerns about transparency or intelligibility: Dunsmuir, above at paragraph 47. The reasons, especially viewed in light of the record and the investigator’s report, are sufficient for Ms. Bergeron to understand how the Commission Bergeron v. Canada (Attorney General) David Stratas J.A. 21

came to its decision: English-Baker v. Canada (Attorney General), 2009 FC 1253 (F.C.) at paragraph 28. 64 For the foregoing reasons and also for the reasons set out by the Fed- eral Court at paragraphs 41-43 of its reasons, I conclude that no grounds exist for setting aside the Commission’s decision on the basis of reasonableness.

(2) The procedural fairness issue: the thoroughness of the investigation 65 Ms. Bergeron submits that the Commission’s investigation was not thorough enough. She says, with some support in the case law, that this is a procedural fairness question that is to be reviewed on a standard of correctness. She adds that although she made submissions on the inade- quacy of the investigation to the Federal Court, the Federal Court did not deal with them. The respondent contests this. 66 The reasons of the Federal Court do not reveal any specific analysis of the thoroughness of the investigation. Therefore, I shall consider the issue afresh. 67 The law concerning the standard of review for procedural fairness is currently unsettled. The unsettled nature of that law is shown by the Su- preme Court’s recent decision in Khela v. Mission Institution, 2014 SCC 24, [2014] 1 S.C.R. 502 (S.C.C.), a procedural fairness case. In that decision, the Supreme Court declared, without elaboration, that the standard of review is correctness but just ten paragraphs later it found that some deference should be owed to the administrative decision-maker on some elements of the procedural decision: at paragraphs 79 and 89. 68 Some cases of this Court have fastened onto the Supreme Court’s statement of correctness in Khela without noting the later words of deference: see, e.g., Air Canada v. Canadian Transportation Agency, 2014 FCA 288, 468 N.R. 184 (F.C.A.) at paragraph 26. Those cases have not referred to other cases of this Court that suggest that the standard is not purely correctness and that some deference can come to bear. 69 For example, this Court has spoken of proceeding under correctness review but in a manner “respectful of the [decision-maker’s] choices” with “a degree of deference”: Re:Sound v. Fitness Industry Council of Canada, 2014 FCA 48, 455 N.R. 87 (F.C.A.) at paragraph 42. And this Court has also upheld reasonableness review, but on the basis of a varia- ble margin of appreciation being afforded to the decision-maker (as explained above), sometimes a wide one and sometimes no margin at all: 22 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

Forest Ethics Advocacy Assn. v. National Energy Board, 2014 FCA 245, 465 N.R. 152 (F.C.A.); and for a defence of this position see my dissenting reasons in Maritime Broadcasting System Ltd. v. Canadian Media Guild, 2014 FCA 59, 373 D.L.R. (4th) 167 (F.C.A.). And in this very context — whether procedural fairness was infringed by an insufficiently thorough investigation under the Canadian Human Rights Act — there is authority for the proposition that deference to the fact-based judgment of the Commissioner is warranted: Slattery v. Canada (Human Rights Com- mission)), [1994] 2 F.C. 574, 73 F.T.R. 161 (Fed. T.D.) at paragraphs 55- 56, aff’d Slattery v. Canada (Human Rights Commission) (1996), 205 N.R. 383 (Fed. C.A.). 70 One might also query whether a failure to investigate thoroughly under the Act is a procedural defect, triggering whatever standard of review applies to procedural matters. A decision based on a deficient investigation can be characterized as one that is not substantively acceptable or defensible because it is based on incomplete information, thereby triggering the standard of review for substantive defects governed by Dunsmuir, above. As was the case in Forest Ethics, above, the line between a procedural concern and a substantive concern can be a blurry one. As this Court explained in Forest Ethics, there is much to be said for the view that the same standard of review — reasonableness with varia- ble margins of appreciation depending on the circumstances (as described earlier in these reasons) — should govern all administrative decisions. 71 So what we have right now is a jurisprudential muddle. And now is not the time to try to resolve it. For one thing, we have not received submissions on the issue in this case. For another, with so many conflicting decisions, perhaps only a reasoned decision of the Supreme Court can provide clarity. 72 In any event, as will be seen, it is not necessary to resolve this issue here. On this record, even on a standard of correctness, there is no ground to interfere with the Commissioner’s decision on the basis of procedural fairness. 73 Ms. Bergeron submits that the Commission committed procedural error by not investigating the matter thoroughly. She relies upon Federal Court decisions that suggest that Commission investigations must be “thorough and complete” and even “as thorough as possible”: Gravelle c. Canada (Procureur général), 2006 FC 251, 60 Admin. L.R. (4th) 179 (F.C.) at paragraph 36; Société Radio-Canada c. Syndicat des Bergeron v. Canada (Attorney General) David Stratas J.A. 23

Communications de Radio-Canada (FNC-CSN) (2005), 2005 FC 466, 272 F.T.R. 116 (Eng.) (F.C.) at paragraphs 36-37. 74 In my view, these snippets from the Federal Court decisions — not binding upon us — should not be relied upon as requirements for all investigations in all contexts. Taken in the abstract, they can be misleading. While an investigation must be thorough, an investigator need not pursue every last conceivable angle: • The degree of thoroughness required of an investigation depends on the circumstances of each case. In some cases, one or more facts may resolve the issue under investigation to the investigator’s satisfaction, rendering continued investigation unnecessary. • Perhaps related to the last point, thoroughness must also be qualified by the need for a workable and administratively effective system for reviewing complaints under the Act: Slattery (T.D.), above at paragraph 55, aff’d C.A., above; Shaw v. Royal Canadian Mounted Police, 2013 FC 711, 435 F.T.R. 176 (Eng.) (F.C.) at paragraph 31. In some cases, at some point, the utility of further investigation is nil. • Only “fundamental issues” need be investigated so that complaints can receive the “broad grounds” of the case against them. Put another way, a deficient investigation warranting relief is one where there has been an “unreasonable omission” in the investigation or the investigation is “clearly deficient”: Slattery (T.D.), above at paragraphs 56 and 67-69, aff’d C.A., above. For example, a failure to investigate obviously crucial evidence where an omission has been made that cannot be compensated for by making further submissions will result in a finding of lack of procedural fairness: Sketchley, above. • In a section 41 matter, the extent of investigation is limited. An investigator is not to weigh evidence. Rather, the investigator’s task is to uncover the facts relevant to the section 41 matter. See generally McIlvenna v. Bank of Nova Scotia, 2014 FCA 203, 466 N.R. 195 (F.C.A.). 75 The Commission considered Ms. Bergeron’s submissions, including those she submitted after the investigator issued her report. The submissions she filed after the report largely repeated information she had previously given the investigator. The investigator’s report itself addressed a number of Ms. Bergeron’s submissions and materials she provided: Re- port, paragraphs 16(d)-(h) and 18-21. 24 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

76 To some extent, Ms. Bergeron’s submissions smack of a complaint that the investigator’s report did not reference everything she had submitted. But an investigator is not required to refer to everything: Shaw, above at paragraph 27; Anderson v. Canada (Attorney General), 2013 FC 1040, 71 Admin. L.R. (5th) 1 (F.C.) at paragraph 55. The test in Slattery (T.D.), above, aff’d C.A., above, is whether there is an “unreasonable omission” in the investigation or the investigation is “clearly deficient.” The investigator’s report need not be an encyclopaedia of everything submitted. The focus must be on the substance of the investigator’s findings, not matters of form. 77 In this case, the process was fair. The investigator was neutral and sufficiently thorough for the purposes of the issue before her, namely whether the grievance was an adequate recourse. She repeatedly sought submissions. Indeed, Ms. Bergeron was allowed to make further submissions well after submissions were formally closed, after the conciliation failed. The investigator prepared a report that identified the issues, the parties’ positions, the factors to be applied and the information gathered from the parties. The Commission based its decision on the report and adopted some of the analysis in it. 78 For the foregoing reasons, I conclude that there is no ground for setting aside the Commission’s decision on the basis of procedural unfairness.

C. Proposed disposition 79 Like the Federal Court, I have not been persuaded that there are any grounds for setting aside the Commission’s decision. Accordingly, I would dismiss the appeal with costs.

Johanne Trudel J.A.:

I agree

Wyman W. Webb J.A.:

I agree Appeal dismissed. Coderre c. Canada (Commissaire a` l’Information) 25

[Indexed as: Coderre c. Canada (Commissaire a` l’Information)] Roger Coderre, Madeleine Coderre, Jocelyn Coderre, Richard Coderre, St-Germain Transport Ltée, Les Immeubles S.G.T. Ltée and Gestion S.G.T. Ltée, Applicants and The Information Commissioner of Canada, Respondent Federal Court Docket: T-1954-14 2015 FC 776, 2015 CF 776 Denis Gascon J. Heard: April 13, 2015 Judgment: June 22, 2015 Tax –––– Income tax — Administration and enforcement — Canada Reve- nue Agency (formerly Revenue Canada) — Miscellaneous –––– Seven taxpayers received notice of reassessment on November 10th, 2003 concerning income tax returns for 1997-2000 taxation years inclusively — Taxpayers made request to Canada Revenue Agency (CRA) to obtain documents that had been seized by CRA during audits — CRA sent notice of extension of 180 days to answer request for documents — Taxpayers sent complaint to Information Com- missioner of Canada, stating that notice of extension was excessive in circumstances — CRA subsequently sent some documents requested to taxpayers — Many documents sent contained redacted portions — Taxpayers sent second complaint, alleging that CRA had redacted or taken out portions of documents — CRA had yet to send all documents requested at expiration of extension of 180 days — Taxpayer sent third complaint alleging that CRA had failed to send all documents within time frame specified — Taxpayers brought application for judicial review for mandamus order obliging Commissioner to send results and conclusions of investigations within 30 days — Application dismissed — Commissioner did not fail to conduct investigation in circumstances — Commissioner was still in midst of investigation when taxpayers brought application — Application was premature in circumstances — There was absence of unreasonable delay in conducting investigation — Taxpayers would not suffer prejudice from length of time of investigation. Privacy and freedom of information –––– Freedom of information — Fed- eral legislation — Practice and procedure — Miscellaneous –––– Seven taxpayers received notice of reassessment on November 10th, 2003 concerning income tax returns for 1997-2000 taxation years inclusively — Taxpayers made request to Canada Revenue Agency (CRA) to obtain documents that had been 26 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

seized by CRA during audits — CRA sent notice of extension of 180 days to answer request for documents — Taxpayers sent complaint to Information Com- missioner of Canada, stating that notice of extension was excessive in circumstances — CRA subsequently sent some documents requested to taxpayers — Many documents sent contained redacted portions — Taxpayers sent second complaint alleging that CRA had redacted or taken out portions of documents — CRA had yet to send all documents requested at expiration of extension of 180 days — Taxpayer sent third complaint alleging that CRA had failed to send all documents within time frame specified — Taxpayers brought application for judicial review for mandamus order, obliging Commissioner to send results and conclusions of investigations within 30 days — Application dismissed — Com- missioner did not fail to conduct investigation in circumstances — Commis- sioner was still in midst of investigation when taxpayers brought application — Application was premature in circumstances — There was absence of unreasonable delay in conducting investigation — Taxpayers would not suffer prejudice from length of time of investigation. Cases considered by Denis Gascon J.: Apotex Inc. v. Canada (Attorney General) (1993), 51 C.P.R. (3d) 339, 162 N.R. 177, [1994] 1 F.C. 742, 18 Admin. L.R. (2d) 122, (sub nom. Apotex Inc. v. Merck & Co.) 69 F.T.R. 152 (note), 1993 CarswellNat 820, 1993 Car- swellNat 1357, [1993] F.C.J. No. 1098 (Fed. C.A.) — considered Apotex Inc. v. Canada (Attorney General) (1994), 176 N.R. 1, [1994] 3 S.C.R. 1100, 29 Admin. L.R. (2d) 1, 59 C.P.R. (3d) 82, 1994 CarswellNat 1402, 1994 CarswellNat 1501, EYB 1994-67302, [1994] S.C.J. No. 113, [1994] A.C.S. No. 113 (S.C.C.) — referred to Ashley v. Canada (Commissioner of Competition) (2006), 2006 FC 459, 2006 CarswellNat 917, 47 C.P.R. (4th) 379, 2006 CF 459, 2006 CarswellNat 2892, 46 Admin. L.R. (4th) 218, (sub nom. Ashley v. Commissioner of Com- petition) 290 F.T.R. 106 (Eng.), [2006] F.C.J. No. 568 (F.C.) — considered Blank v. Canada (Minister of Justice) (2009), 2009 FC 1221, 2009 CarswellNat 3889, 2009 CF 1221, 2009 CarswellNat 5719, 373 F.T.R. 1 (Eng.), [2009] F.C.J. No. 1509 (F.C.) — referred to Blencoe v. British Columbia (Human Rights Commission) (2000), 2000 SCC 44, 2000 CarswellBC 1860, 2000 CarswellBC 1861, 3 C.C.E.L. (3d) 165, [2000] S.C.J. No. 43, 81 B.C.L.R. (3d) 1, 190 D.L.R. (4th) 513, [2000] 10 W.W.R. 567, 23 Admin. L.R. (3d) 175, 2000 C.L.L.C. 230-040, 260 N.R. 1, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 77 C.R.R. (2d) 189, 141 B.C.A.C. 161, 231 W.A.C. 161, [2000] 2 S.C.R. 307, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 38 C.H.R.R. D/153, REJB 2000-20288, 2000 CSC 44 (S.C.C.) — followed Canada (Information Commissioner) v. Canada (Minister of National Defence) (1999), 240 N.R. 244, 1999 CarswellNat 850, (sub nom. Commissaire a` l’information du Canada v. Canada (Ministre de la D´efense nationale)) 166 Coderre c. Canada (Commissaire a` l’Information) 27

F.T.R. 277 (note), [1999] F.C.J. No. 522, 1999 CarswellNat 4769 (Fed. C.A.) — referred to Conille v. Canada (Minister of Citizenship & Immigration) (1998), [1999] 2 F.C. 33, (sub nom. Conille v. Canada (Ministre de la Citoyennet´e et de l’Immigration)) 159 F.T.R. 215, 1998 CarswellNat 2788, 15 Admin. L.R. (3d) 157, 1998 CarswellNat 2905, [1998] F.C.J. No. 1553 (Fed. T.D.) — considered Dragan v. Canada (Minister of Citizenship & Immigration) (2003), 2003 FCT 211, 2003 CarswellNat 467, 2003 CFPI 211, 2003 CarswellNat 1525, 227 F.T.R. 272, 224 D.L.R. (4th) 738, 27 Imm. L.R. (3d) 157, [2003] F.C.J. No. 260, [2003] 4 F.C. 189 (Fed. T.D.) — considered Hechavarria v. Canada (Minister of Public Safety & Emergency Preparedness) (2010), 2010 FC 767, 2010 CarswellNat 2429, 2010 CF 767, 2010 Car- swellNat 3103 (F.C.) — referred to Nautica Motors Inc. v. Minister of National Revenue (2002), 2002 FCT 422, 2002 CarswellNat 779, 2002 CarswellNat 2079, [2002] G.S.T.C. 41, 2002 G.T.C. 1145, 218 F.T.R. 296 (Eng.) (Fed. T.D.) — referred to Nichol v. Canada (Privacy Commissioner) (2001), 2001 FCT 412, 2001 Car- swellNat 905, 2001 CFPI 412, 2001 CarswellNat 5631 (Fed. T.D.) — referred to Rocky Mountain Ecosystem Coalition v. Canada (National Energy Board) (1999), 1999 CarswellNat 1507, 174 F.T.R. 17, [1999] F.C.J. No. 1223, 1999 CarswellNat 5399 (Fed. T.D.) — considered Statham v. Canadian Broadcasting Corp. (2009), 2009 FC 1028, 2009 Car- swellNat 3148, 2009 CF 1028, 2009 CarswellNat 5300, (sub nom. Statham v. Canadian Broadcasting Corp. (President)) 353 F.T.R. 102 (Eng.), [2010] 4 F.C.R. 216 (F.C.) — referred to Statham v. Canadian Broadcasting Corp. (2010), 2010 FCA 315, 2010 Car- swellNat 4389, 2010 CAF 315, 2010 CarswellNat 5394, 326 D.L.R. (4th) 228, 409 N.R. 350, [2012] 2 F.C.R. 421, 353 F.T.R. 102 (F.C.A.) — referred to Tumarkin v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FC 915, 2014 CarswellNat 3609, 2014 CF 915, 2014 CarswellNat 3852 (F.C.) — referred to Vaziri v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 1159, 2006 CarswellNat 3014, 55 Imm. L.R. (3d) 247, 2006 CF 1159, 2006 CarswellNat 4791, 52 Admin. L.R. (4th) 118, 300 F.T.R. 158 (Eng.), [2006] F.C.J. No. 1458, [2006] A.C.F. No. 1458 (F.C.) — considered Whitty v. Canada (Attorney General) (2013), 2013 FC 595, 2013 CarswellNat 1755, 2013 CF 595, 2013 CarswellNat 2578, 433 F.T.R. 268 (Eng.) (F.C.) — referred to 28 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

Statutes considered by Denis Gascon J.: Access to Information Act, R.S.C. 1985, c. A-1 Generally — referred to s. 7 — considered s. 9 — referred to s. 30 — considered s. 34 — considered s. 35 — considered s. 37 — considered s. 37(1) — considered s. 37(2) — considered s. 41 — considered s. 62 — considered s. 63(1) — considered Competition Act, R.S.C. 1985, c. C-34 Generally — referred to Federal Courts Act, R.S.C. 1985, c. F-7 s. 18 — pursuant to Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) Generally — referred to

APPLICATION for judicial review for mandamus order, obliging Commis- sioner to send results and conclusions of investigations within 30 days.

Isabelle Th´eberge, for Applicants Diane Therrien, Carolina Mingarelli, for Respondent

Denis Gascon J.:

[UNREVISED ENGLISH CERTIFIED TRANSLATION]

I. Introduction 1 In this case, applicants Roger Coderre, his spouse, his two children and three companies controlled by him or a member of his family filed an application for judicial review pursuant to section 18 of the Federal Courts Act, RSC 1985, c F-7, seeking a writ of mandamus requiring the respondent, the Information Commissioner of Canada [the Commis- sioner], to disclose to them the reports of the findings of various investigations initiated by the Commissioner under the Access to Information Act, RSC 1985, c A-1 [the AIA]. 1 These investigations were launched by the Commissioner in response to complaints submitted to her by the applications after the Canada Cus- Coderre c. Canada (Commissaire a` l’Information) Denis Gascon J. 29

toms and Revenue Agency, now the Canada Revenue Agency [CRA], refused to disclose certain records that they had requested. 2 For the reasons that follow, the application for judicial review is dismissed.

II. Facts 3 Applicant Roger Coderre is the spouse of applicant Madeleine Coderre and the father of applicants Richard Coderre and Jocelyn Coderre. Roger Coderre is also president of applicant St-Germain Trans- port Ltée [SGT] and was acting president of applicant Gestions S.G.T. Ltée [Gestions] before these two companies merged. SGT is a holding company, just as Gestions was. Applicant Richard Coderre, meanwhile, is president of the third company, applicant Les Immeubles S.G.T. Ltée [Immeubles]. 4 The Commissioner is an independent agent of the Parliament of Can- ada whose role is to enforce the AIA and investigate complaints made to her, under the AIA, in respect of refusals by federal government institutions to disclose a record or a part of a record. 5 On November 10, 2003, the applicants received notices of reassessment made by the CRA pursuant to the Income Tax Act, RSC 1985, c 1 (5th Supp.) [ITA], with regard to income declared by the applicants for the years 1997 to 2000. 6 On January 16, 2014, six of the applicants made a request to the CRA for access to records that the CRA had seized in its investigation leading to notices of reassessment. On January 22, 2014, the seventh applicant, Jocelyn Coderre, also made a similar request to the CRA for access to records. These access requests pertained to [TRANSLATION] “[a]ll records in the possession of Revenue Canada concerning the reassess- ments for the years 1997 to 2000”. In addition, the applicants asked that certain records described in the requests be given priority. 7 On February 28, 2014, the CRA gave notice, pursuant to section 9 of the AIA, of an extension of the time limit to respond to the applicants’ requests for access to records. By this notice of extension, the CRA notified the applicants that it was extending the time limit granted to it under the AIA to respond to their requests by an additional 180 days. Section 7 of the AIA provides that a government institution that receives an access request is required to respond to it within 30 days, unless this time limit is extended. 30 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

8 On March 12, 2014, each of the applicants submitted a complaint to the Commission, alleging that the length of the extension declared by the CRA was excessive [extension complaints]. 9 Then, between March 27 and August 6, 2014, the CRA sent the applicants some of the records to which they had requested access, including a portion of the records to which they had requested priority access. How- ever, the CRA had redacted these records in places, on various grounds provided for in the AIA. All these records disclosed by the CRA thus became the subject of a second series of five complaints by the applicants, on the basis that several pages had been redacted or removed without justification [exemption complaints]. 10 The applicants submitted these five exemption complaints to the Commissioner between April 2 and August 11, 2014. 11 On August 28, 2014, the CRA’s 180-day extension came to an end. However, the CRA still did not disclose all the initially requested records to the applicants. 12 On September 8, 2014, the applicants filled out and submitted a third series of complaints, this time of the basis of a “deemed refusal to grant access” under section 10 of the AIA [deemed refusal complaints]. In these seven deemed refusal complaints, the applicants alleged that the CRA had failed to give them access to all the records described in their requests for access to records, despite the extended time limit that the CRA had to do so. 13 On September 12, 2014, the applicants instituted this application for judicial review by which they are seeking a writ of mandamus requiring the Commissioner to give access, within 30 days of the judgment, to reports of the findings of her investigations into all the applicants’ complaints, of which there are now 19. 14 On November 5, 2014, the Commissioner sent the CRA and each of the applicants the reports on her findings with regard to the first series of seven extension complaints submitted on March 12, 2014. The Commis- sioner’s investigation into the seven initial complaints having been completed, this portion of this application for judicial review is now moot, so there is nothing to be gained by hearing and dealing with it here (Nichol v Canada (Privacy Commissioner), 2001 FCT 412, at paras. 6-7). 15 The Commissioner’s investigations regarding the applicants’ other 12 complaints exemption or deemed refusal complaints, however, have not been completed. Coderre c. Canada (Commissaire a` l’Information) Denis Gascon J. 31

III. Issue 16 The only issue raised in this case is whether the applicants have met the necessary conditions for the Court to exercise its discretion and issue a writ of mandamus ordering the Commissioner to provide reports of the findings from her investigations into the various complaints submitted by the applicants.

IV. Applicable statutory provisions 17 The relevant provisions of the AIA are found in sections 30, 34, 35, 37, 41, 62 and 63 of that Act. They read as follows: Receipt and investigation of complaints 30. (1) Subject to this Act, the Information Commissioner shall receive and investigate complaints; (a) from persons who have been refused access to a record requested under this Act or a part thereof; (b) from persons who have been required to pay an amount under section 11 that they consider unreasonable; (c) from persons who have requested access to records in respect of which time limits have been extended pursuant to section 9 where they consider the extension unreasonable; (d) from persons who have not been given access to a record or a part thereof in the official language requested by the person under subsection 12(2), or have not been given access in that language within a period of time that they consider appropriate; (d.1) from persons who have not been given access to a record or a part thereof in an alternative format pursuant to a request made under subsection 12(3), or have not been given such access within a period of time that they consider appropriate; (e) in respect of any publication or bulletin referred to in section 5; or (f) in respect of any other matter relating to requesting or obtaining access to records under this Act. Marginal note: Complaints submitted on behalf of complainants (2) Nothing in this Act precludes the Information Commissioner from receiving and investigating complaints of a nature described in subsection (1) that are submitted by a person authorized by the complainant to act on behalf of the complainant, and a reference to a 32 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

complainant in any other section includes a reference to a person so authorized. Marginal note: Information Commissioner may initiate complaint (3) Where the Information Commissioner is satisfied that there are reasonable grounds to investigate a matter relating to requesting or obtaining access to records under this Act, the Commissioner may initiate a complaint in respect thereof. ... 34. Subject to this Act, the Information Commissioner may determine the procedure to be followed in the performance of any duty or function of the Commissioner under this Act. Investigations in private 35. (1) Every investigation of a complaint under this Act by the In- formation Commissioner shall be conducted in private. Marginal note: Right to make representations (2) In the course of an investigation of a complaint under this Act by the Information Commissioner, a reasonable opportunity to make representations shall be given to (a) the person who made the complaint, (b) the head of the government institution concerned, and (c) a third party if (i) the Information Commissioner intends to recommend the disclosure under subsection 37(1) of all or part of a record that contains — or that the Information Com- missioner has reason to believe might contain — trade secrets of the third party, information described in paragraph 20(1)(b) or (b.1) that was supplied by the third party or information the disclosure of which the Information Commis- sioner can reasonably foresee might effect a result described in paragraph 20(1)(c) or (d) in respect of the third party, and (ii) the third party can reasonably be located. However no one is entitled as of right to be present during, to have access to or to comment on representations made to the Information Commissioner by any other person. ... Findings and recommendations of Information Commissioner 37. (1) If, on investigating a complaint in respect of a record under this Act, the Information Commissioner finds that the complaint is well-founded, the Commissioner shall provide the head of the gov- Coderre c. Canada (Commissaire a` l’Information) Denis Gascon J. 33

ernment institution that has control of the record with a report containing (a) the findings of the investigation and any recommendations that the Commissioner considers appropriate; and (b) where appropriate, a request that, within a time specified in the report, notice be given to the Commissioner of any action taken or proposed to be taken to implement the recommendations contained in the report or reasons why no such action has been or is proposed to be taken. Report to complainant and third parties (2) The Information Commissioner shall, after investigating a complaint under this Act, report to the complainant and any third party that was entitled under subsection 35(2) to make and that made representations to the Commissioner in respect of the complaint the results of the investigation, but where a notice has been requested under paragraph (1)(b) no report shall be made under this subsection until the expiration of the time within which the notice is to be given to the Commissioner. ... Review by Federal Court 41. Any person who has been refused access to a record requested under this Act or a part thereof may, if a complaint has been made to the Information Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Information Commissioner are reported to the complainant under subsection 37(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow. ... Confidentiality 62. Subject to this Act, the Information Commissioner and every person acting on behalf or under the direction of the Commissioner shall not disclose any information that comes to their knowledge in the performance of their duties and functions under this Act. Disclosure authorized 63. (1) The Information Commissioner may disclose or may authorize any person acting on behalf or under the direction of the Commis- sioner to disclose information (a) that, in the opinion of the Commissioner, is necessary to 34 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

(i) carry out an investigation under this Act, or (ii) establish the grounds for findings and recommendations contained in any report under this Act; or (b) in the course of a prosecution for an offence under this Act, a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act, a review before the Court under this Act or an appeal therefrom. [emphasis added] Réception des plaintes et enquêtes 30. (1) Sous réserve des autres dispositions de la présente loi, le Commissaire a` l’information re¸coit les plaintes et fait enquête sur les plaintes: a) déposées par des personnes qui se sont vu refuser la communication totale ou partielle d’un document qu’elles ont de- mandé en vertu de la présente loi; b) déposées par des personnes qui considèrent comme excessif le montant réclamé en vertu de l’article 11; c) déposées par des personnes qui ont demandé des documents dont les délais de communication ont et´´ e prorogés en vertu de l’article 9 et qui considèrent la prorogation comme abusive; d) déposées par des personnes qui se sont vu refuser la traduction visée au paragraphe 12(2) ou qui considèrent comme contre-indiqué le délai de communication relatif a` la traduction; d.1) déposées par des personnes qui se sont vu refuser la communication des documents ou des parties en cause sur un support de substitution au titre du paragraphe 12(3) ou qui considèr- ent comme contre-indiqué le délai de communication relatif au transfert; e) portant sur le répertoire ou le bulletin visés a` l’article 5; f) portant sur toute autre question relative a` la demande ou a` l’obtention de documents en vertu de la présente loi. Note marginale: Entremise de représentants (2) Le Commissaire a` l’information peut recevoir les plaintes visées au paragraphe (1) par l’intermédiaire d’un représentant du plaignant. Dans les autres articles de la présente loi, les dispositions qui concernent le plaignant concernent egalement´ son représentant. Coderre c. Canada (Commissaire a` l’Information) Denis Gascon J. 35

Note marginale: Plaintes emanant´ du Commissaire a` l’information (3) Le Commissaire a` l’information peut lui-même prendre l’initiative d’une plainte s’il a des motifs raisonnables de croire qu’une enquête devrait etreˆ menée sur une question relative a` la demande ou a` l’obtention de documents en vertu de la présente loi. [...] Procédure 34. Sous réserve des autres dispositions de la présente loi, le Com- missaire a` l’information peut etablir´ la procédure a` suivre dans l’exercice de ses pouvoirs et fonctions. Secret des enquêtes 35. (1) Les enquêtes menées sur les plaintes par le Commissaire a` l’information sont secrètes. Note marginale: Droit de présenter des observations (2) Au cours de l’enquête, les personnes suivantes doivent avoir la possibilité de présenter leurs observations au Commissaire a` l’information, nul n’ayant toutefois le droit absolu d’être présent lorsqu’une autre personne présente des observations au Commissaire a` l’information, ni d’en recevoir communication ou de faire des com- mentaires a` leur sujet: a) la personne qui a déposé la plainte; b) le responsable de l’institution fédérale concernée; c) un tiers, s’il est possible de le joindre sans difficultés, dans le cas où le Commissaire a` l’information a l’intention de recom- mander, aux termes du paragraphe 37(1), la communication de tout ou partie d’un document qui contient ou est, selon lui, susceptible de contenir des secrets industriels du tiers, des renseignements visés aux alinéas 20(1)b) ou b.1) qui ont et´´ e fournis par le tiers ou des renseignements dont la communication risquerait, selon lui, d’entraˆıner pour le tiers les consé- quences visées aux alinéas 20(1)c) ou d). [...] Conclusions et recommandations du Commissaire a` l’information 37. (1) Dans les cas où il conclut au bien-fondé d’une plainte portant sur un document, le Commissaire a` l’information adresse au responsable de l’institution fédérale de qui relève le document un rapport où: 36 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

a) il présente les conclusions de son enquête ainsi que les recommandations qu’il juge indiquées; b) il demande, s’il le juge a` propos, au responsable de lui donner avis, dans un délai déterminé, soit des mesures prises ou en- visagées pour la mise en oeuvre de ses recommandations, soit des motifs invoqués pour ne pas y donner suite. Compte rendu au plaignant (2) Le Commissaire a` l’information rend compte des conclusions de son enquête au plaignant et aux tiers qui pouvaient, en vertu du paragraphe 35(2), lui présenter des observations et qui les ont présentées; toutefois, dans les cas prévus a` l’alinéa (1)b), le Commis- saire a` l’information ne peut faire son compte rendu qu’après l’expiration du délai imparti au responsable de l’institution fédérale. [...] Révision par la Cour fédérale 41. La personne qui s’est vu refuser communication totale ou partielle d’un document demandé en vertu de la présente loi et qui a déposé ou fait déposer une plainte a` ce sujet devant le Commissaire a` l’information peut, dans un délai de quarante-cinq jours suivant le compte rendu du Commissaire prévu au paragraphe 37(2), exercer un recours en révision de la décision de refus devant la Cour. La Cour peut, avant ou après l’expiration du délai, le proroger ou en autoriser la prorogation. [...] Secret 62. Sous réserve des autres dispositions de la présente loi, le Com- missaire a` l’information et les personnes agissant en son nom ou sous son autorité sont tenus au secret en ce qui concerne les renseignements dont ils prennent connaissance dans l’exercice des pouvoirs et fonctions que leur confère la présente loi. Divulgation autorisée 63. (1) Le Commissaire a` l’information peut divulguer, ou autoriser les personnes agissant en son nom ou sous son autorité a` divulguer, les renseignements: a) qui, a` son avis, sont nécessaires pour: (i) mener une enquête prévue par la présente loi, (ii) motiver les conclusions et recommandations con- tenues dans les rapports et comptes rendus prévus par la présente loi; Coderre c. Canada (Commissaire a` l’Information) Denis Gascon J. 37

b) dont la divulgation est nécessaire, soit dans le cadre des pro- cédures intentées pour infraction a` la présente loi ou pour une infraction a` l’article 131 du Code criminel (parjure) se rap- portant a` une déclaration faite en vertu de la présente loi, soit lors d’un recours en révision prévu par la présente loi devant la Cour ou lors de l’appel de la décision rendue par celle-ci. [nos soulignements]

V. Parties’ arguments 18 The applicants submit that they should have received the Commis- sioner’s reports on the findings regarding the complaints by now, and that it is clearly unreasonable and contrary to the principles of natural justice that they have not yet received them. According to the applicants, the Commissioner’s failure to disclose these reports prevents them from filing an application for judicial review, pursuant to section 41 of the AIA, of the CRA’s decisions to refuse to disclose certain information and records to them under statutory exemptions in the Act. 19 According to section 41 of the AIA, making a complaint to the Com- missioner and receiving a report on the results of her investigation are conditions precedent to being able to apply for judicial review of a government institution’s refusal to disclose a record or part thereof (Statham v Canadian Broadcasting Corporation, 2010 FCA 315; Whitty v Canada (Attorney General), 2013 FC 595). The applicants state that, if the Com- missioner were given an extension for disclosing her reports, the disclosure could end up not being made until such time as the reports would no longer be of any relevant use to the applicants. In such circumstances, argue the applicants, this would be a clear case allowing a writ of mandamus to be issued, since the conditions established by the case law would be met (Apotex Inc v Canada (Attorney General), [1994] 1 FC 742 (FCA), aff’d [1994] 3 SCR 1100 [Apotex]; Nautica Motors Inc c Canada (Minister of National Revenue), 2002 FCT 422). 20 More specifically, the applicants submit that they have proved the existence of their right and have already given the Commissioner more than reasonable time; that the Commissioner’s power under the AIA is fettered and non-discretionary; that they have no other recourse but this application for mandamus; and that the balance of convenience is in their favour. 21 In their oral submissions to the Court, the applicants also argue that the delay in receiving the reports on the Commissioner’s findings is un- 38 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

reasonable when compared with the time usually involved in such cases. This situation therefore meets, according to the applicants, the criteria laid down by the Supreme Court in Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 [Blencoe] to establish that an administrative agency’s delay is unreasonable. In fact, the applicants note that the Commissioner’s silence prevents them from even knowing what stage has been reached in processing their complaints and that the Com- missioner has given no explanation for the slow progress of her investigations. 22 The Commissioner, in contrast, states that the applicants have not shown that the necessary conditions for issuing a writ of mandamus, as set out in Apotex, have been met in this case. According to the Commis- sioner, these criteria are cumulative and must be strictly met (Rocky Mountain Ecosystem Coalition v Canada (National Energy Board) (1999), 174 FTR 17 [Rocky Mountain]). The Commissioner notes that she did not refuse, expressly or implicitly, to investigate the applicants’ complaints or disclose her reports; this is simply a situation where her investigations are still in progress and have not yet been completed. Given the nature of the investigation process required under the AIA and the various steps that the Act imposes, the Commissioner submits that the delays in this case are not unreasonable. 23 Moreover, according to the Commissioner, there is another avenue available to the applicants (under the ITA) to directly obtain access to the CRA records they requested under the AIA, and they have not shown that the balance of convenience favours issuing the order sought. 24 The Commissioner points out that, with regard to the seven deemed refusal complaints, the application for judicial review filed by the applicants is clearly premature because it was instituted even before the applicants received confirmation that these complaints had been received by the Commissioner. Finally, the Commissioner submits that under the AIA, the applicants do not have an acquired right to receive reports on the findings of her investigations, their right being limited to requesting, through a complaint, that the Commissioner conduct an investigation where a government institution has denied access to certain records.

VI. Analysis 25 The conditions that an applicant must meet to satisfy the Court that a writ of mandamus may issue were established by the Federal Court of Appeal in Apotex. These conditions can be summarized as follows in re- Coderre c. Canada (Commissaire a` l’Information) Denis Gascon J. 39

spect of the exercise of a fettered, non-discretionary power such as that of the Commissioner under the AIA: 1. There must be a public legal duty to act; 2. The duty must be owed to the applicant; 3. There is a clear right to performance of that duty, in particular: a. The applicant has satisfied all conditions precedent giving rise to the duty; b. There was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay; 4. No other adequate remedy is available to the applicant; 5. The order sought will be of some practical value or effect; 6. The Court in the exercise of its discretion finds no equitable bar to the relief sought; 7. On a “balance of convenience” an order in the nature of mandamus should (or should not) issue. 26 Mandamus is an extraordinary remedy. The criteria for mandamus are cumulative, and all the conditions set out in Apotex must be strictly met before a writ of mandamus will issue (Rocky Mountain, at para. 30). 27 Given the cumulative nature of these conditions, the application for judicial review in this case can be disposed of by considering the third condition mentioned above, namely, the existence of “a clear right to performance of that duty”, which includes the reasonableness or unreasonableness of the delay in performing the duty. I am of the opinion that, in this case, the applicants have not met this condition precedent to issuing a writ of mandamus against the Commissioner. The Commissioner has not breached the duty imposed on her by the AIA, and there has been no unreasonable delay in handling the applicants’ complaints. 28 I note with regard to the five exemption complaints that the first was filed on April 2, 2014, while the last is dated August 11, 2014. The seven deemed refusal complaints, meanwhile, are all dated September 8, 2014. When the application for judicial review was filed by the applicants on September 12, 2014, the time elapsed since the date of the first exemption complaint was therefore a little more than five months, and barely four days for the more recent deemed refusal complaints. At the date of this judgment, the time elapsed since the applicants’ various complaints 40 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

were filed with the Commissioner varied from a minimum of a little more than 9 months for the most recent one to a maximum of a little more than 14 months for the oldest one.

A. Lack of refusal by Commissioner 29 The evidence in the record shows that the Commissioner did start an investigation into the applicants’ complaints, as prescribed by section 30 of the AIA, and that there was no refusal to perform this duty on her part. Indeed, the Commissioner’s investigations into the applicants’ complaints are still in progress and are not yet completed, be it for the exemption complaints or for the deemed refusal complaints. Moreover, there is nothing to indicate or suggest that the Commissioner is not pursuing these investigations. 30 As for the duty to report the findings of her investigations, as provided in subsection 37(2) of the AIA, this duty is triggered only in cases where, as per subsection 37(1) of the AIA, the Commissioner “finds that the complaint [in respect of a record] is well-founded”, which cannot happen until the Commissioner’s investigation into the complaint in question has been completed. 31 It should be noted that the AIA does not specify or impose a time limit for the Commissioner to complete her investigations and issue the reports on the findings of her investigations under section 37 of the Act. Moreover, the AIA does not contain any provisions imposing a duty of care on the Commissioner in conducting her investigations or issuing her reports. Finally, section 34 of the AIA expressly provides that the Com- missioner alone determines the procedure to be followed in the performance of her duties and functions. 32 The Commissioner not only did not refuse to perform her duties under the AIA, but also followed, in respect of the applicants’ complaints, the procedure and requirements prescribed by the AIA for conducting her investigations. 33 The investigation process established in the AIA for complaints such as those filed by the applicants has numerous steps and imposes multiple duties on the Commissioner, such as the duty to conduct investigations in private (section 35) or to give the complainant or the government institution an opportunity to make representations (section 35) before making findings and, if necessary, discussing them with the government institution (section 37). It is only at the end of this entire process that the Com- Coderre c. Canada (Commissaire a` l’Information) Denis Gascon J. 41

missioner can close her investigation and forward the report on her findings to the complainant under section 37 of the AIA. 34 Incidentally, the Federal Court of Appeal has qualified the investigative powers of the Commissioner as the “cornerstone” of the access to information system in Canada (Canada (Information Commissioner) v Canada (Minister of National Defence) (1999), 240 N.R. 244, at para. 27; Statham v Canadian Broadcasting Corporation, 2009 FC 1028, at para. 18). 35 The evidence therefore clearly demonstrates that the application for judicial review filed by the applicants is premature because the Commis- sioner needs more time to complete her investigation into their complaints before being able to make the reports on her findings. 36 This Court has also stated, in the context of an application for perma- nent residence under Canadian immigration legislation, that reasonable time must be given to the authorities to complete their investigation, review and analyze the facts of the case (Hechavarria v Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 767, at para. 16). When the request that is the subject of an application for mandamus is still being processed and the file is progressing, as is the case here, there is no denying that one of the conditions for issuing a writ of mandamus has not been met since there has been no categorical refusal on the part of the administrative body to deal with the applicant’s request. 37 Finally, I note not only that the applicants’ complaints are still in the process of being dealt with by the Commissioner, but that the delay in dealing with the complaints will in no way deprive the applicants of their right to institute an application for judicial review, pursuant to section 41 of the AIA, of any future decision that the CRA might make to refuse to give them access to certain records following the Commissioner’s investigation report. Indeed, the time limit for bringing an application under section 41 does not start to run until the report on the Commissioner’s findings has been received. 38 Moreover, as the Commissioner notes, it is possible that, once her report has been completed and her reports and recommendations have been given to the CRA, the government institution may decide to give the applicants the records to which they have requested access. If this does not happen, the applicants will then be able to apply for judicial review of the CRA’s refusal to give access to these records. In either case, it is clear that the time the Commissioner takes to process the appli- 42 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

cants’ complaints and issue the reports on the findings of her investigations is not prejudicial to the applicants. 39 This is not a situation where the applicant has suffered significant prejudice because of the delay, such that this delay could be called unreasonable (Vaziri v Canada (Minister of Citizenship and Immigration), 2006 FC 1159, at para. 52 [Vaziri]; Blencoe, at para. 101).

B. No unreasonable delay 40 It remains to be determined, however, whether the time it has taken, up to now, to complete the investigations into the applicants’ complaints and issue the reports on the Commissioner’s findings can be considered to be an unreasonable delay. 41 In Conille v Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33, at para. 23 [Conille], the Federal Court established that the following three conditions must be met for a delay to be considered unreasonable: the delay has been longer than the necessary delay nor- mally required by the nature of the process and for conducting the proceedings in question; the applicant and his or her counsel are not responsible for the delay; and the administrative tribunal has not provided satisfactory justification for the delay. 42 It should be added that, as the Supreme Court stated in Blencoe, at para. 122, the determination of whether a delay has become inordinate depends on, among other things, the nature of the case and its complex- ity, the facts and issues, the purpose and nature of the proceedings. 43 It is common ground that the applicants and their legal counsel are not responsible for the delay. 44 However, based on the analysis of the evidence in the record and considering the provisions of the AIA, I am of the opinion that the applicants have not shown that the delay in processing their complaints exceeds the time required for the Commissioner to conduct an investigation. Moreo- ver, the Commissioner has provided satisfactory justification for the delay in processing the applicants’ complaints. 45 Indeed, a maximum delay of a little more than 5 months up to the date this application for judicial review was instituted (or a little more than 14 and a half months up to the date of this judgment) cannot be a delay that exceeds what the nature of the process under the AIA requires, prima facie. Given all the steps required by the AIA investigation process, I am of the opinion that the delay in completing the investigation Coderre c. Canada (Commissaire a` l’Information) Denis Gascon J. 43

into the applicants’ complaints and preparing the reports on the findings is by no means unreasonable. 46 According to the evidence adduced by the Commissioner, the investigations into the applicants’ complaints are taking no more time than what the Commissioner usually requires in such cases. The reports submitted by the Commissioner state, among other things, that in 2013-2014, 63% of the complaints received were settled within nine months of being filed, which means that 37% of the complaints required an investigation exceeding nine months. On the whole, the median time for settling a complaint was approximately six and a half months from the date of filing. I acknowledge that the statistics that the Commissioner relies on are general in nature and do not contain precise data that more specifically address times for processing complaints relating to CRA activities. How- ever, there is nothing in the evidence or in the applicants’ submissions to suggest that the situation with CRA would be any different from the overall reality experienced by the totality of government institutions named in complaints received by the Commissioner. 47 While average processing times on their own are not necessarily determinative of acting within a reasonable time, such averages give a benchmark from which the Court may assess delay in a particular file (Tumarkin v Canada (Minister of Citizenship and Immigration), 2014 FC 915, at para. 18). In the case before us, the delays in processing the applicants’ complaints, which range from a minimum of a few days to a little more than five months up to the date the applicants filed the application for judicial review, are shorter than the median processing time experienced by the Commissioner for processing the complaints she receives. What is more, if we look at the lengths of these delays in relation to the date of this judgment (which delays then range from a little more than 9 months to a maximum of a little more than 14 months), they still fall within a category (that of investigations requiring more than 9 months) that represents more than a third of the complaints received and processed by the Commissioner. 48 The Commissioner also referred to the volume of complaints that she must process in a fiscal year (which is growing) and to the limited resources available to her to carry out her responsibilities (which, according to the 2014-2015 Plans and Priorities, should likely result in longer times for conducting her investigations). Although this is a contextual factor to consider, I nonetheless note that delays attributable to a government institution’s limited resources or to a growing volume of com- 44 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

plaints cannot be considered as an explanation that could justify a delay that would otherwise be unreasonable (Dragan v Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189, at para. 57 [Dragan]). 49 It is also important to place the longer investigation time in the more specific context of the complaints filed by the applicants. Several of the complaints concern the CRA’s application of exclusions and exemptions and the redactions that the government institution made in certain requested records. Such complaints require a more onerous process by which the Commissioner must look at the records page by page and hold discussions with the CRA to determine whether the exemptions relied on by the government institution to refuse to disclose the information redacted or deleted are justified and comply with the provisions of the AIA. This is an additional factor supporting the conclusion that the delay is not unreasonable in this case. 50 All these circumstances provide a reasonable explanation for the delay in the Commissioner’s process for investigating the applicants’ complaints, and thus meet the third condition of the legal test set out in Conille, namely, a satisfactory explanation for the administrative body’s delay. 51 I also note that the delays in this case, ranging from a few days to a maximum of a little more than 14 and a half months depending on the reference date used, are significantly less than many other cases where this Court has recognized, in citizenship and immigration cases, that the time that the government institution concerned spent processing applications was reasonable (Vaziri, at para. 48; Dragan, at para. 57; Conille, at para. 23). Indeed, in those cases, the time to process the applications exceeded three or even four years. Similarly, in Ashley v Canada (Commis- sioner of Competition), 2006 FC 459, the applicants sought a writ of mandamus requiring the Commissioner of Competition to complete an inquiry commenced pursuant to the Competition Act, RSC 1985, c C-34. The applicants alleged that the Commissioner had unreasonably delayed in completing his inquiry. The time between the beginning of the inquiry and the filing of the application for judicial review was nearly 17 months in that case, and the Court nevertheless concluded that the applicant had not shown that the Commissioner had delayed in conducting his inquiry. 52 Moreover, the Commissioner argued in her submissions that granting a writ of mandamus in these circumstances would be contrary to Parlia- ment’s intent and the scheme of the AIA. I agree. The AIA does indeed provide for a two-level, independent review process for government in- Coderre c. Canada (Commissaire a` l’Information) Denis Gascon J. 45

stitution decisions to refuse to give access to records: the Commissioner is the first level, and this court will intervene only at the second, after the investigation initiated by the Commissioner and the notice issued by her regarding the position taken by the government institution (Blank v Can- ada (Department of Justice), 2009 FC 1221, at para. 26). 53 The system set up under the AIA therefore provides that, after a government institution decides to refuse to give access to a record, it is up to the Commissioner to investigate to determine whether the federal agency’s position complies with the law. Issuing a writ of mandamus while this investigation is still unfinished would put an end to the Com- missioner’s investigation and short-circuit the AIA process before the Commissioner could report her findings regarding the refusal to disclose information. This is a power that Parliament specifically gave to the Commissioner, and it is not this Court’s place, in the context of an application for judicial review, to supplant the Commissioner in regard to this determination. In such a case, the Court’s intervention is not warranted. 54 Judicial review by this Court (pursuant to section 41 of AIA) will remain as a remedy available to the applicants should the government institution in question here ultimately refuse to disclose the requested information after they receive the Commissioner’s investigation report. 55 The Commissioner adds that she cannot provide any more details or adduce in evidence any specific information regarding the state of ad- vancement of her investigations into the applicants’ complaints because of section 62 of the AIA, which requires the Commissioner to protect the confidentiality of the information she handles and not disclose any information that comes to her knowledge in the performance of her duties and functions. According to the Commissioner, this section prevents her from disclosing any information whatsoever regarding these investigations. In light of the conclusion I have reached regarding the reasonableness of the delay in this case, there is no need for the Court to determine the scope of section 62 to conclude that the applicants’ mandamus application must be rejected. 56 I note, however, that the Supreme Court stated in Blencoe that the reasonableness of a delay must be assessed in relation “to the inherent time requirements of the matter before the particular administrative body”, which includes the legal and factual complexities of the case (including “the need to gather large amounts of information or technical data”) (at para. 160). To the extent that a contextual analysis must be conducted to determine whether a delay is reasonable, general informa- 46 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

tion on the magnitude of the investigatory work required in a particular case (in terms, for example, of the number of records or pages to be examined) could therefore become an important fact in explaining or justi- fying a longer than normal delay in a particular investigation.

VII. Conclusion 57 Given that the Commissioner did not refuse to perform her duties to investigate and to report on her findings regarding the investigation into the applicants’ complaints, that the investigations into these complaints are still active and ongoing, and that the delay in completing the investigations initiated by the Commissioner is reasonable, I find that the applicants have not met the required conditions for a writ of mandamus to issue. 58 The Court, exercising its discretion, is therefore not inclined to issue the writ of mandamus sought, and this application for judicial review filed by the applicants is dismissed.

Judgment THIS COURT ORDERS AND ADJUDGES that: 1. The application for judicial review and a writ of mandamus is dismissed, with costs against the applicants. Kenyon v. B.C. (Superintendent of Motor Vehicles) 47

[Indexed as: Kenyon v. British Columbia (Superintendent of Motor Vehicles)] Lyle Anthony Kenyon, Respondent (Petitioner) and Superintendent of Motor Vehicles and Attorney General of British Columbia, Appellants (Respondents) British Columbia Court of Appeal Docket: Vancouver CA41596 2015 BCCA 485 Tysoe, Groberman, Dickson JJ.A. Heard: October 21, 2015 Judgment: November 26, 2015 Motor vehicles –––– Offences and penalties — Suspension of licence — Practice and procedure — Judicial review — Evidence capable of supporting decision –––– Officer observed van pulling onto road — Van stopped, and officer observed that man was only occupant — Officer detected overpowering odour of alcohol — Male said, “you got me” — Man later said that he had not moved van and did not have keys — Driving prohibition was issued under Mo- tor Vehicle Act — Adjudicator, being satisfied that man was driver, upheld prohibition — In granting petition for judicial review, judge found that case could not safely be decided on available evidence and that adjudicator resorted to series of peripheral credibility tests, which was unsound approach — Superinten- dent of Motor Vehicles and Attorney General appealed — Appeal allowed; adjudicator’s decision reinstated — In some cases, written record will not permit adjudicator to decide which version of events is true — In such case, adjudicator cannot be satisfied that there was compliance with statutory requirements, and driving prohibition would have to be set aside — If judicial review judge was suggesting that this should be result in majority of cases, there was disagreement — If judge was suggesting that standard of review for adjudicator’s decision should be correctness or closer to correctness end of reasonableness spectrum, there was disagreement with this as well — Judge did not properly apply reasonableness standard and held adjudicator to higher standard than required by law. Motor vehicles –––– Offences and penalties — Suspension of licence — Grounds — Miscellaneous –––– Officer observed van pulling onto road — Van stopped, and officer observed that man was only occupant — Officer detected overpowering odour of alcohol — Male said, “you got me” — Man later said that he had not moved van and did not have keys — Driving prohibition was issued under Motor Vehicle Act — Adjudicator, being satisfied that man was 48 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

driver, upheld prohibition — In granting petition for judicial review, judge found that case could not safely be decided on available evidence and that adjudicator resorted to peripheral credibility tests, which was unsound approach — Superintendent of Motor Vehicles and Attorney General appealed — Appeal allowed; adjudicator’s decision reinstated — It was not unreasonable for adjudicator to consider man’s story to be inherently implausible — It was not illogical to conclude that man’s comment could be interpreted as admission that he was driving — Adjudicator’s reasoning process was not so lacking in logic or otherwise flawed to make her conclusion unreasonable. Cases considered by Tysoe J.A.: A.T.A. v. Alberta (Information & Privacy Commissioner) (2011), 2011 SCC 61, 2011 CarswellAlta 2068, 2011 CarswellAlta 2069, 339 D.L.R. (4th) 428, 28 Admin. L.R. (5th) 177, 52 Alta. L.R. (5th) 1, [2012] 2 W.W.R. 434, (sub nom. Alberta Teachers’ Association v. Information & Privacy Commissioner (Alta.)) 424 N.R. 70, (sub nom. Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association) [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 519 A.R. 1, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 539 W.A.C. 1 (S.C.C.) — followed Allen v. Newfoundland and Labrador (Workplace Health, Safety & Compensation Review Division) (2014), 2014 NLCA 42, 2014 CarswellNfld 352, 379 D.L.R. (4th) 271, (sub nom. Allen v. Workplace Health, Safety and Compensation Review Division) 1109 A.P.R. 1, (sub nom. Allen v. Workplace Health, Safety and Compensation Review Division) 357 Nfld. & P.E.I.R. 1, 16 C.C.P.B. (2nd) 1 (N.L. C.A.) — considered Canada (Minister of Citizenship and Immigration) v. Khosa (2009), 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 82 Admin. L.R. (4th) 1, [2009] S.C.J. No. 12, 77 Imm. L.R. (3d) 1, 385 N.R. 206, 304 D.L.R. (4th) 1, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339 (S.C.C.) — followed Goodwin v. British Columbia (Superintendent of Motor Vehicles) (2015), 2015 SCC 46, 2015 CSC 46, 2015 CarswellBC 2938, 2015 CarswellBC 2939, [2015] S.C.J. No. 46, [2015] A.C.S. No. 46, [2015] 11 W.W.R. 1, 75 B.C.L.R. (5th) 213, 23 C.R. (7th) 1, 84 M.V.R. (6th) 40 (S.C.C.) — referred to Guinn v. Manitoba (2009), 2009 MBCA 82, 2009 CarswellMan 373, [2009] 9 W.W.R. 1, [2009] M.J. No. 279, 98 Admin. L.R. (4th) 68, 245 Man. R. (2d) 57, 466 W.A.C. 57 (Man. C.A.) — referred to Mills v. Ontario (Workplace Safety & Insurance Appeals Tribunal) (2008), 2008 ONCA 436, 2008 CarswellOnt 3184, 237 O.A.C. 71, [2008] O.J. No. 2150 (Ont. C.A.) — referred to Kenyon v. B.C. (Superintendent of Motor Vehicles) 49

N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 SCC 62, 2011 CarswellNfld 414, 2011 CarswellNfld 415, D.T.E. 2012T-7, 340 D.L.R. (4th) 17, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 213 L.A.C. (4th) 95, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, 97 C.C.E.L. (3d) 199, 38 Admin. L.R. (5th) 255 (S.C.C.) — followed Nagra v. British Columbia (Superintendent of Motor Vehicles) (2010), 2010 BCCA 154, 2010 CarswellBC 717, 3 B.C.L.R. (5th) 231, 316 D.L.R. (4th) 696, 253 C.C.C. (3d) 531, 93 M.V.R. (5th) 204, [2010] 6 W.W.R. 197, 285 B.C.A.C. 133, 482 W.A.C. 133 (B.C. C.A.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 2008 SCC 9, 2008 CarswellNB 124, 2008 CarswellNB 125, D.T.E. 2008T-223, [2008] S.C.J. No. 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, 64 C.C.E.L. (3d) 1, 69 Imm. L.R. (3d) 1, 69 Admin. L.R. (4th) 1, 372 N.R. 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] A.C.S. No. 9, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, 2008 CSC 9 (S.C.C.) — followed Newfoundland and Labrador (Workplace Health, Safety and Compensation Commission) v. Allen (2015), 2015 CarswellNfld 243, 2015 CarswellNfld 244, [2015] S.C.C.A. No. 34 (S.C.C.) — referred to Petro-Canada v. British Columbia (Workers’ Compensation Board) (2009), 2009 BCCA 396, 2009 CarswellBC 2416, 98 B.C.L.R. (4th) 1, 276 B.C.A.C. 135, 468 W.A.C. 135 (B.C. C.A.) — followed Power v. Newfoundland & Labrador (Workplace Health, Safety & Compensation Review Division) (2012), 2012 CarswellNfld 10, 2012 NLTD(G) 4, 989 A.P.R. 222, 318 Nfld. & P.E.I.R. 222, [2012] N.J. No. 8 (N.L. T.D.) — considered Rangi v. British Columbia (Superintendent of Motor Vehicles) (2014), 2014 BCSC 2343, 2014 CarswellBC 3684, [2014] B.C.J. No. 3046 (B.C. S.C.) — considered Ryan v. Law Society (New Brunswick) (2003), 2003 SCC 20, 2003 CarswellNB 145, 2003 CarswellNB 146, [2003] S.C.J. No. 17, 223 D.L.R. (4th) 577, 48 Admin. L.R. (3d) 33, 302 N.R. 1, 31 C.P.C. (5th) 1, 257 N.B.R. (2d) 207, 50 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

674 A.P.R. 207, (sub nom. Law Society of New Brunswick v. Ryan) [2003] 1 S.C.R. 247, REJB 2003-39404, 2003 CSC 20 (S.C.C.) — followed Scott v. British Columbia (Superintendent of Motor Vehicles) (2013), 2013 BCCA 554, 2013 CarswellBC 3867, 348 B.C.A.C. 211, 595 W.A.C. 211, 59 M.V.R. (6th) 202, 55 B.C.L.R. (5th) 246 (B.C. C.A.) — considered Scott v. British Columbia (Superintendent of Motor Vehicles) (2014), 2014 Car- swellBC 1460, 2014 CarswellBC 1461, [2014] S.C.C.A. No. 73, 474 N.R. 399 (note) (S.C.C.) — referred to Serrano Lemus v. Canada (Minister of Citizenship and Immigration) (2014), 2014 FCA 114, 2014 CarswellNat 1362, 372 D.L.R. (4th) 567, [2014] F.C.J. No. 439, (sub nom. Lemus v. Canada (Minister of Citizenship and Immigra- tion)) 461 N.R. 310, 27 Imm. L.R. (4th) 28, 2014 CAF 114, 2014 Car- swellNat 4859 (F.C.A.) — considered Shadow v. British Columbia (Superintendent of Motor Vehicles) (2002), 2002 BCSC 790, 2002 CarswellBC 1175, 29 M.V.R. (4th) 145 (B.C. S.C.) — considered Whyte v. British Columbia (Superintendent of Motor Vehicles) (2013), 2013 BCCA 454, 2013 CarswellBC 3173, [2013] B.C.J. No. 2303, 51 B.C.L.R. (5th) 93, 54 M.V.R. (6th) 6, 344 B.C.A.C. 247, 587 W.A.C. 247 (B.C. C.A.) — considered Wilson v. British Columbia (Superintendent of Motor Vehicles) (2015), 2015 SCC 47, 2015 CSC 47, 2015 CarswellBC 2940, 2015 CarswellBC 2941, [2015] S.C.J. No. 47, [2015] A.C.S. No. 47, [2015] 11 W.W.R. 429, 11 W.W.R. 429, 23 C.R. (7th) 44, 84 M.V.R. (6th) 1, 76 B.C.L.R. (5th) 1 (S.C.C.) — considered Statutes considered: Administrative Tribunals Act, S.B.C. 2004, c. 45 Generally — referred to Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 25 — considered Motor Vehicle Act, R.S.B.C. 1996, c. 318 s. 215.5 [en. 2010, c. 14, s. 19] — considered s. 215.41 [en. 2010, c. 14, s. 19] — considered ss. 215.41-215.51 [en. 2010, c. 14, s. 19] — referred to s. 215.41(1) [en. 2010, c. 14, s. 19] — considered s. 215.41(2) [en. 2010, c. 14, s. 19] — considered s. 215.41(3.1) [en. 2012, c. 26, s. 1(c)] — considered s. 215.42 [en. 2010, c. 14, s. 19] — considered s. 215.43 [en. 2010, c. 14, s. 19] — considered s. 215.44 [en. 2010, c. 14, s. 19] — considered s. 215.46 [en. 2010, c. 14, s. 19] — considered Kenyon v. B.C. (Superintendent of Motor Vehicles) Tysoe J.A. 51

s. 215.47(d) [en. 2010, c. 14, s. 19] — considered s. 215.48(1) [en. 2010, c. 14, s. 19] — considered s. 215.48(5) [en. 2010, c. 14, s. 19] — considered s. 215.49(1) [en. 2010, c. 14, s. 19] — considered s. 215.49(2) [en. 2010, c. 14, s. 19] — considered s. 215.49(4) [en. 2012, c. 26, s. 6(b)] — considered

APPEAL from judgment reported at Kenyon v. British Columbia (Superintendent of Motor Vehicles) (2014), 2014 BCSC 168, 2014 CarswellBC 269 (B.C. S.C.), granting petition for judicial review concerning driving prohibition.

K.A. Horsman, Q.C., S.A. Bevan, for Appellants S.R. Wright, for Respondent

Tysoe J.A.: Introduction 1 This appeal is one of three appeals heard at the same time. Each is an appeal from an order of the Supreme Court of British Columbia granting a petition for judicial review and setting aside a decision of a delegate of the Superintendent of Motor Vehicles (the “Superintendent”) upholding a roadside driving prohibition issued under s. 215.41 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (the “Act”). The reasons for judgment in the other two appeals (Petrov v. British Columbia (Superintendent of Motor Vehicles), 2015 BCCA 486 (B.C. C.A.), and Clark v. British Columbia (Superintendent of Motor Vehicles), 2015 BCCA 487 (B.C. C.A.)) will be issued concurrently with these reasons for judgment. 2 The issue in the present case was whether Mr. Kenyon was a driver of a motor vehicle immediately prior to the request by the police that he provide a sample of his breath. Upon Mr. Kenyon’s application to the Superintendent for a review of his driving prohibition, the Superinten- dent’s delegate (the “adjudicator”) was satisfied that he was a driver at the time and confirmed the prohibition, together with the accompanying monetary penalty and vehicle impoundment. 3 The judicial review judge found that the case could not safely be decided on the available evidence and that the adjudicator had resorted to a series of peripheral credibility tests, which was an unsound approach. He set aside the decision of the adjudicator and revoked the prohibition. 4 For the reasons that follow, I would allow the appeal and reinstate the adjudicator’s decision. 52 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

Legislative Framework 5 I will summarize only those provisions of ss. 215.41 through 215.51 of the Act that are relevant to this appeal. There are other provisions that arise in other cases concerning roadside prohibitions (for example, provisions dealing with the failure or refusal of the driver to provide a breath sample). 6 Section 215.41(3.1) provides that a peace officer must serve a notice of driving prohibition if (a) the officer has made a demand under the Criminal Code for a driver to provide a sample of breath for analysis by means of an approved screening device and the device registered a warn or a fail, and (b) the officer has reasonable grounds to believe, as a result of the analysis, that the driver’s ability to drive is affected by alcohol. 7 The term “driver” is defined to include “a person having the care or control of a motor vehicle on a highway or industrial road whether or not the motor vehicle is in motion” (s. 215.41(1)). 8 The term “warn” is defined as a reading that indicates the concentration of alcohol is not less than 50 milligrams of alcohol in 100 millilitres of blood (s. 215.41(2)). The term “fail” is defined as a reading that indicates the concentration of alcohol is not less than 80 milligrams of alcohol in 100 millilitres of blood (s. 215.41(2)). Whether the reading is a warn or a fail affects the length of the driving prohibition, the amount of the monetary penalty and the decision of the peace officer to impound the motor vehicle (ss. 215.43, 215.44 and 215.46). 9 If the approved screening device registers a warn or a fail, the driver must be informed of the right to provide a second breath sample and, if the driver wishes to provide a second sample, the analysis must be performed with a different approved screening device. The lower of the two readings governs (s. 215.42). 10 If a peace officer serves a notice of driving prohibition, the officer must forward to the Superintendent, among other things, a report sworn or affirmed by him or her (s. 215.47(d)). 11 A person served with a notice of driving prohibition may apply to the Superintendent for a review of the prohibition (s. 215.48(1)). An oral hearing is not required to be held unless one is requested by a person served with a notice of driving prohibition for 30 or 90 days (s. 215.48(5)). 12 In conducting the review, the adjudicator must consider the report of the peace officer and any other documents and information provided by Kenyon v. B.C. (Superintendent of Motor Vehicles) Tysoe J.A. 53

the officer, any written statements or evidence provided by the applicant and any evidence given during an oral hearing (s. 215.49(1)). No person may be cross examined (s. 215.49(2)). The adjudicator may determine the weight to be given to any document or other information (s. 215.49(4)). 13 After considering the review application, the adjudicator must confirm the driving prohibition (and accompanying monetary penalty and vehicle impoundment) if, in essence, the adjudicator is satisfied there was compliance with the statutory requirements (s. 215.5).

Factual Background 14 In his report, the peace officer stated that he received two separate complaints that there was a naked male running on the road at a specified location and that the van associated with the male was parked in the east- bound lane of the road. The officer attended the location and spoke with the two complainants, who pointed to a van down the road and said that it looked like he was trying to drive away. 15 The officer reported that he observed the van slowly pulling onto the road. He activated the police vehicle’s emergency lights, and the van stopped. The officer approached the van and observed that the male in the van was naked and was the only occupant. The male opened the driver’s door and the officer smelled an overpowering odour of alcohol. The officer noted that the occupant had slurred speech and, when he got out of the van, displayed poor balance. The officer asked the male what he had been drinking, and the male denied having anything to drink. 16 The officer made a demand for a breath sample and asked the male when he had his last drink. The male answered that he was not drinking. The officer took a breath sample with an approved screening device, and it registered a fail. The officer advised the male of his right to provide a second sample, and the male said he wanted to speak to his lawyer first. The male also said with a laugh, “you got me”. 17 Mr. Kenyon provided a one-page statement in support of his application to review the driving prohibition. He said he had been drinking in a bar during the evening in question and met a woman named Sharon, who he did not previously know. She accepted his invitation to his house, and she drove his van because he had too much to drink to drive safely. 18 They stopped on the way home and became intimate. Mr. Kenyon removed all of his clothing. He exited the van to urinate, and Sharon told him that she needed to attend a nearby house. She left with the keys. He 54 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

returned to the van and waited inside for some period of time for her to return. 19 The police eventually attended and spoke with Mr. Kenyon. In his statement, Mr. Kenyon said that he had not moved the van in any way and that, when the police asked where the keys were, he told them Sharon had them. He concluded the statement by stating that at no point on the day in question did he drive a motor vehicle after consuming alcohol.

Adjudicator’s Decision 20 The adjudicator made findings on all of the statutory requirements, but I will set out only those portions relating to the issue of whether Mr. Kenyon was the driver of his van at the time of the incident. The adjudicator summarized the officer’s report and Mr. Kenyon’s statement, and then provided an analysis. 21 The reasoning of the adjudicator was as follows: In considering the events generally, I do not find your account convincing. If events unfolded as you described, your compliance with providing a sample is difficult to understand. Further, I find that the officer has provided a detailed report with respect to his observations as well as the witnesses’ observations. I find it unlikely that someone parked on the side of the road and going into the bushes to urinate would be reported as, “someone running down the road naked”. I also find it difficult to accept that “Sharon” would remove your keys from the ignition if she wasn’t coming back or that you would allow a stranger to take your keys. I also find it puzzling that when faced with the officer’s belief in regard to your impairment you stated, “you got me.” Consequently, I find the officer’s evidence more compelling. I am satisfied that you were a driver within the meaning of section 215.41(1) of the Act. 22 The adjudicator confirmed the driving prohibition.

Judicial Review Judge’s Decision 23 In his reasons for judgment (indexed as 2014 BCSC 168 (B.C. S.C.)), the judicial review judge began his analysis by pointing out that, within the “circumscribed scheme governing Superintendent’s reviews”, the officer’s report and Mr. Kenyon’s statement could not be reconciled because “the ordinary means of determining the truth are proscribed” (para. 22). Kenyon v. B.C. (Superintendent of Motor Vehicles) Tysoe J.A. 55

24 The judge commented that the adjudicator did not address the problem posed by the lack of evidence respecting the keys and had attempted to resolve credibility with reference to a series of externalities. He considered it to be entirely specious for the adjudicator to find Mr. Kenyon’s compliance with the breath demand “difficult to understand” if he was not the driver (para. 25). 25 The judge considered it to be a complete non sequitur for the adjudicator to find it difficult to reconcile the hearsay reports of a person running down the road naked with someone going into the bushes to urinate (para. 26). 26 The judge considered the adjudicator to have speculated, on no evidentiary basis, that Mr. Kenyon knew Sharon was not coming back. He observed that the adjudicator failed to come to grips with the fact that there was no evidence that the keys were present at the scene and did not consider “the obvious fact that if the keys were at the scene it is virtually certain that the officer would have seized them” (para. 27). 27 The judge thought it was illogical for the adjudicator to have concluded that Mr. Kenyon’s statement “you got me” was saying something about driving. He stated that the officer’s observation about the van being in motion stood alone and that there was no evidence that the keys were at the scene (para. 31). 28 The judge expressed the view that this case cautions against making credibility findings on a limited evidentiary basis and, generally, that the impoverished record before adjudicators must “yield a larger number of cases in which the burden of proof is not carried” (para. 35). 29 During the course of his reasons, the judge made reference to numerous authorities, including the decisions of this Court in Nagra v. British Columbia (Superintendent of Motor Vehicles), 2010 BCCA 154 (B.C. C.A.); Whyte v. British Columbia (Superintendent of Motor Vehicles), 2013 BCCA 454 (B.C. C.A.); and Scott v. British Columbia (Superintendent of Motor Vehicles), 2013 BCCA 554 (B.C. C.A.). 30 The judge made further comments about the scheme of reviews by the Superintendent and suggested that where a tribunal performs an “essentially judicial” function, the standard of review of reasonableness “may be tantamount to correctness” (para. 52). 31 The judge concluded that the adjudicator’s use of peripheral credibility tests was methodologically and substantively unsound. He stated that it was a case that could not safely be decided on the available evidence, 56 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

and there was no utility in remitting the matter to the Superintendent for a rehearing. He considered it open to the court to substitute its own order, and he ordered the prohibition be revoked.

Standard of Review on Judicial Review 32 The starting point in discussing the standard of review of administrative decision makers (at least where, as here, the Administrative Tribu- nals Act, S.B.C. 2004, c. 45, does not apply) is the decision of the Su- preme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.). Prior to Dunsmuir, the courts had applied three standards of review depending on the issue in question: correctness, reasonableness simpliciter and patent unreasonableness. In view of the difficulties in applying the three-standard model, the Court decided that the two variants of reasonableness review should be collapsed into a single form. The result is that the correctness standard applies to truly jurisdictional issues and some questions of law, and the reasonableness standard applies to all other matters. 33 In discussing what the revised reasonableness standard means, Jus- tices Bastarache and LeBel said the following: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. In- stead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [Underlining added.] I note that while the Court concludes with the concern that the decision fall within a range of acceptable outcomes, it also refers to the reasonableness standard involving an inquiry into the process of articulating the reasons. Reference to the process as well as the outcome was echoed in the subsequent decision of the Supreme Court of Canada in Canada Kenyon v. B.C. (Superintendent of Motor Vehicles) Tysoe J.A. 57

(Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12 (S.C.C.) at para. 59. 34 In Dunsmuir, Bastarache and LeBel JJ. went on to discuss the deference to be given to administrative tribunals when applying the reasonableness standard to their decisions: [48] ... What does deference mean in this context? Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determina- tions of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference “is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers” (Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at p. 596, per L’Heureux-Dub´e J., dissenting). We agree with David Dyzenhaus where he states that the concept of “deference as respect” requires of the courts “not submission but a respectful attention to the reasons offered or which could be offered in support of a decision”: “The Politics of Deference: Judicial Review and Democ- racy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286 (quoted with approval in Baker, at para. 65, per L’Heureux-Dub´e J.; Ryan, at para. 49). [Underlining added.] The above passage suggests that, in at least some circumstances, a reviewing court must not only have regard to the reasons of the administrative tribunal but also to other reasons that could be offered to support the reasonableness of the decision. 35 The above passage was repeated by Madam Justice Abella in N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.) at para. 11. In that case, the decision of an arbitrator was set aside by the reviewing court on the basis that it was unreasonable because the conclusion was unsupported by a chain of reasoning. In other words, the reasons were held to be inadequate to support the conclusion. The Supreme Court of Canada confirmed the decision of the Newfound- land and Labrador Court of Appeal reinstating the arbitrator’s decision. 58 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

36 Madam Justice Abella, at para. 12, quoted further from the article of Professor Dyzenhaus at 304: “Reasonable” means here that the reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them. For if it is right that among the reasons for deference are the appoint- ment of the tribunal and not the court as the front line adjudicator, the tribunal’s proximity to the dispute, its expertise, etc, then it is also the case that its decision should be presumed to be correct even if its reasons are in some respects defective. [Emphasis of Abella J.] 37 Madam Justice Abella also said the following: [14] Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result (Donald J. M. Brown and John M. Evans, Judicial Re- view of Administrative Action in Canada (loose-leaf), at §§12:5330 and 12:5510). It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (para. 47). This passage could be interpreted to mean that the ultimate question is whether the result falls within a range of possible, acceptable outcomes irrespective of the nature of any defect in the reasons of the decision maker. The question that arises is whether Abella J.’s comments apply in the context of a decision where the adequacy of the decision maker’s reasons is at issue, or whether the comments have broader application. 38 Some assistance in answering this question comes from a decision of the Supreme Court of Canada that was issued the day before Newfoundland Nurses, the case of A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61 (S.C.C.). In that case, the legislation set a 90-day time limit for the completion of an inquiry by the Infor- mation and Privacy Commissioner unless the Commissioner notified the parties that the time period was extended. The inquiry went past 90 days, and the Commissioner had not expressly extended the time period. The issues before the Court were whether it should undertake judicial review Kenyon v. B.C. (Superintendent of Motor Vehicles) Tysoe J.A. 59

of the implicit decision of the Commissioner’s delegate to extend the time period and, if so, what was the appropriate standard of review. 39 In upholding the adjudicator’s implicit decision, Mr. Justice Rothstein discussed the above quoted passages from Dunsmuir (paras. 47 and 48). At para. 53, he stated that the direction in Dunsmuir — that a reviewing court should give respectful attention to reasons “which could be offered in support of a decision” — was apposite where the issue in question was not raised before the decision maker and no reasons for the decision were given. He continued: [54] I should not be taken here as suggesting that courts should not give due regard to the reasons provided by a tribunal when such reasons are available. The direction that courts are to give respectful attention to the reasons “which could be offered in support of a decision” is not a “carte blanche to reformulate a tribunal’s decision in a way that casts aside an unreasonable chain of analysis in favour of the court’s own rationale for the result” (Petro-Canada v. Workers’ Compensation Board (B.C.), 2009 BCCA 396, 276 B.C.A.C. 135, at paras. 53 and 56). 40 Mr. Justice Rothstein quoted one phrase from Petro-Canada v. British Columbia (Workers’ Compensation Board) [2009 CarswellBC 2416 (B.C. C.A.)], but it is instructive in my view to consider the entire passage from which the phrase was taken. In Petro-Canada, after referring to the statement of Professor Dyzenhaus quoted in para. 48 of Dun- smuir, Mr. Justice Groberman continued: [54] The idea that the Court should review a decision based on the reasonableness of the result as opposed to the chain of reasoning leading to the result must be applied with considerable caution, in my opinion. A court cannot properly be said to defer to a tribunal when it ignores the tribunal’s reasons and fashions its own rationale for the result that the tribunal reached. It should also be kept in mind that both this Court’s judgment in Kovach [Kovach v. British Columbia (Workers’ Compensation Board) (1998), 52 B.C.L.R. (3d) 98 (C.A.)] and the quotation from Professor Dyzenhaus’ article pre-date the Su- preme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the case which clearly established the duty of tribunals to provide reasons for their decisions. It would make little sense to impose on a tribunal a duty to give reasons if those reasons could be ignored on judicial review. The Supreme Court of Canada has recently adverted to the problems inherent in over-emphasizing deference to reasons which could have been, but were not, given by the tribunal. In Canada (Citizenship and 60 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 63, the Court noted: Although the Dunsmuir majority refers with approval to the proposition that an appropriate degree of deference “requires of the courts ‘not submission but a respectful attention to the reasons offered or which could be offered in support of a decision’” (para. 48 (emphasis [of Binnie J.])), I do not think the reference to reasons which “could be offered” (but were not) should be taken as diluting the importance of giving proper reasons for an administrative decision, as stated in Baker at para. 43. [55] The correct approach to the matter was articulated by the Su- preme Court of Canada in Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 56: [The fact that the reviewing court must look to the reasons given by the tribunal to determine reasonableness] does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tena- ble as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreo- ver, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole. [56] A court assessing an administrative tribunal’s decision on a standard of reasonableness owes the tribunal a margin of appreciation. The court should not closely parse the tribunal’s chain of analysis and then examine the weakest link in isolation from the reasons as a whole. It should not place undue emphasis on the precise articulation of the decision if the underlying logic is sound. On the other hand, a court does not have carte blanche to reformulate a tribunal’s decision in a way that casts aside an unreasonable chain of analysis in favour of the court’s own rationale for the result. In my opinion, these paragraphs correctly set out the approach a judicial review judge should take when applying the reasonableness standard of review. 41 The interplay between Newfoundland Nurses and Alberta Teachers has been specifically considered by at least two appellate courts. In Serrano Lemus v. Canada (Minister of Citizenship and Immigration), Kenyon v. B.C. (Superintendent of Motor Vehicles) Tysoe J.A. 61

2014 FCA 114 (F.C.A.), the court found that an officer appointed by the Minister of Citizenship and Immigration made an unreasonable decision with respect to an application under s. 25 of the Immigration and Refu- gee Protection Act, S.C. 2001, c. 27, because she did not consider relevant facts. The Minister invited the court to find material in the record before the officer to sustain the outcome she reached. 42 The Federal Court of Appeal was faced with the issue of whether it should apply the above quoted passage from Newfoundland Nurses or the above quoted passage from Alberta Teachers. It concluded that the con- trolling authority was Alberta Teachers for two reasons. The first was that Newfoundland Nurses was dealing with inadequate reasons, not flawed reasoning. The second was that, in Alberta Teachers, the Court was required to deal directly with para. 48 of Dunsmuir. The Court concluded that it should not supplement or recast the officer’s reasons to save her decision. 43 A similar conclusion was reached by the Newfoundland and Labrador Court of Appeal in Allen v. Newfoundland and Labrador (Workplace Health, Safety & Compensation Review Division), 2014 NLCA 42 (N.L. C.A.) (leave to appeal ref’d [2015] S.C.C.A. No. 34 (S.C.C.)). Mr. Jus- tice Barry held that the comments of Abella J. in Newfoundland Nurses must be considered in light of what Rothstein J. said in para. 54 of Alberta Teachers. In addition to referring to Lemus, Barry J.A., at para. 40, quoted with approval the following passage from Power v. Newfoundland & Labrador (Workplace Health, Safety & Compensation Review Division), 2012 NLTD(G) 4 (N.L. T.D.): [60] Having carefully read this decision in full, I must admit some degree of discomfort in concluding that the Nurses’ Union case stands for the proposition that, if the outcome or result of the decision falls within the range of reasonable outcomes, the reasoning given to support such decision is of no concern. What appears to me to be the result of the decision in the Nurses’ Union case is that reasons given to support a decision where reasonableness is the standard to be applied are to be considered more as an aid for the reviewing Court to understand the adjudicator’s decision and there is no analysis to be made specifically into the reasonableness of those reasons. Because the Nurses’ Union case seeks to uphold the Dunsmuir analysis, I am satisfied that obviously if no supportive reasons are provided or the reasons are flawed based upon the approach to the matter to be decided, the reviewing Court retains the ability to quash the decision under review. Otherwise, the Court would be doing little 62 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

more than showing “blind reverence” to the administrative decision- maker, which in Dunsmuir was found to be an incorrect approach. 44 There are three relevant decisions of this Court relating to judicial review of a decision of a delegate of the Superintendent confirming a roadside driving prohibition: Nagra, Whyte and Scott. The judicial review judge in the present case referred to each of them. It was common ground in each case that the standard of review was reasonableness (this was recently confirmed by the Supreme Court of Canada in Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47 (S.C.C.) at para. 17). 45 In Nagra, the driver disputed the readings given by an approved breathalyzer by submitting evidence of the amount of alcohol he had consumed and the opinion of a forensic alcohol consultant. The adjudicator upheld the driving prohibition but the decision was set aside on judicial review. In allowing the appeal and reinstating the adjudicator’s decision, this Court adopted the statement made by Madam Justice Gray in Shadow v. British Columbia (Superintendent of Motor Vehicles), 2002 BCSC 790 (B.C. S.C.) at para. 13, that “[i]f there is some evidence upon which a finding could reasonably be made, this court should not interfere.” 46 The issue in Whyte was the same as the issue in the present case — was the person given the driving prohibition the driver of the motor vehicle? There was conflicting evidence in the peace officer’s report and affidavits provided by Mr. Whyte with respect to whether the engine was running and the location of the keys. On review of the driving prohibition, the adjudicator decided that it was not necessary to find whether Mr. Whyte was a driver and confirmed the prohibition. The adjudicator’s decision was set aside on judicial review. 47 This Court upheld the decision of the judicial review judge. Mr. Jus- tice Harris referred to Nagra but did not consider it determinative of the appeal. He stated that “a court is entitled to interfere if the route to a decision is demonstrably unreasonable, even where the ultimate findings might be capable of being supported by the record” (para. 11). He held that the path to a decision necessarily involved resolving the question of whether the engine was running or the keys were on the console. 48 In Scott, the issue was whether the driver had failed or refused to give a breath sample following a demand by a peace officer. There were conflicts in the evidence contained in the officer’s report and affidavits provided by the driver. On a review of the driving prohibition, the adjudica- Kenyon v. B.C. (Superintendent of Motor Vehicles) Tysoe J.A. 63

tor found that the evidence given by the driver was not very believable and preferred the officer’s evidence that the driver told him she would not provide a sample. The adjudicator’s decision was set aside on judicial review on the basis that the adjudicator’s process of credibility assessment was fundamentally flawed. 49 On appeal, this Court upheld the judicial review judge’s decision. It distinguished Nagra and rejected the Superintendent’s argument that the court will not interfere as long as there was some evidence upon which the adjudicator’s finding could reasonably have been made (para. 28). The Court followed the reasoning in Whyte and held that, although the adjudicator’s conclusion fell within a range of acceptable outcomes on the evidence, the decision should not stand because the adjudicator’s reasoning was unreasonable as a result of a manifestly flawed approach to the assessment of credibility. 50 The Superintendent applied for leave to appeal Scott to the Supreme Court of Canada, but leave was refused ([2014] S.C.C.A. No. 73 (S.C.C.)). The Superintendent requested that a five-justice division hear the present appeal for the purpose of reconsidering Whyte and Scott, but the Chief Justice denied the request. 51 While implicitly accepting that Whyte and Scott are binding on this division of the Court, the Superintendent requests that guidance be provided in the application of those decisions. The Superintendent says that many judges of the Supreme Court have seen those decisions, particularly Scott, as an invitation for a non-deferential de novo review of adjudicators’ decisions and that many judges are conducting a line-by-line dissection of a decision, which amounts to a review on the basis of the standard of perfection. The Superintendent also requests this Court reconcile the decision in Nagra with the decisions in Whyte and Scott. 52 In requesting such guidance, the Superintendent points to one decision where Scott is said to have been properly applied by a judicial review judge, Rangi v. British Columbia (Superintendent of Motor Vehi- cles), 2014 BCSC 2343 (B.C. S.C.). It is, coincidentally, a decision of the same judge who conducted the judicial review in Scott, Mr. Justice Schultes. He said the following about the appropriate approach to a review of adjudicators’ decisions to confirm roadside driving prohibitions, which are predominantly decided on the basis of credibility assessed solely on a written record: [24] Obviously, an adjudicator’s reasons for deciding whether or not to confirm a prohibition are not meant to be the equivalent of judicial 64 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

reasons for judgment. What is required is evidence reasonably supporting the conclusion that was reached and a route to that conclusion that does not involve a manifestly flawed reasoning process. A reviewing judge must not parse out the decision minutely, but rather consider whether, when read fairly and as a whole, it meets the reasonableness requirement...... [26] Without requiring adjudicators to mimic judicial reasoning pre- cisely, it would certainly be preferable if they considered an officer’s report as evidence that needs to demonstrate its own credibility and reliability, based on the same considerations that apply to any other sworn evidence on the review. It may well be that thorough, well- documented and coherent narratives by police officers in their reports will persuade adjudicators that they should accept the police evidence, but that acceptance needs to be the product of an actual transparent reasoning process, and not simply assumed or left unconsidered. 53 I agree with these comments. Judicial review judges should read the reasons of the adjudicator as a whole in order to assess whether the reasoning is so lacking in logic, or is otherwise flawed, that it renders the decision unreasonable despite the fact there is some evidence to support a conclusion that the decision falls within a range of acceptable outcomes. 54 The phrase “manifestly flawed” was used in Scott, and it appears that judges of the Supreme Court have seized upon the phrase. The use of the term was not intended to replace the requirement that judicial review judges should review the reasons as a whole in order to assess whether the pathway to the conclusion is reasonable. 55 Judicial review judges should not parse or dissect the reasoning. In order to set aside the decision, any flaw in reasoning should be obvious and should be fundamental to the conclusion reached by the adjudicator. In reviews of roadside driving prohibitions, where credibility is fre- quently the central issue, judges should not substitute their own credibility findings in place of those of the adjudicator. The fact that the adjudicator’s reasoning is flawed in one respect does not necessarily lead to the conclusion that the reasoning as a whole is unreasonable. It is necessary to consider the reasons as a whole and determine whether the flaw is central to the conclusion. 56 In my opinion, Nagra can easily be reconciled with Whyte and Scott. In Nagra, the reasoning process of the adjudicator was not questioned, Kenyon v. B.C. (Superintendent of Motor Vehicles) Tysoe J.A. 65

and the issue before the Court was whether the decision of the adjudicator fell within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (per Dunsmuir, para. 47). The Court concluded that the adjudicator’s decision did fall within a range of acceptable outcomes because there was some evidence upon which the conclusion could reasonably have been reached. 57 In each of Whyte and Scott, there was evidence to support the adjudicator’s conclusion, but the issue was whether the adjudicator’s reasoning process was reasonable. In Whyte, the Court concluded that the reasoning process was not reasonable because the adjudicator did not resolve conflicts in the evidence that went to the heart of the issue of whether Mr. Whyte was a driver. In Scott, the Court concluded that the adjudicator reached her conclusion on whether the driver had refused to give a breath sample in an unreasonable manner because she used a flawed approach to the assessment of credibility. 58 I wish to address two aspects of the general comments of the judicial review judge in the present case as they relate to the standard of review. The judge was critical of the review process for roadside driving prohibitions. He commented that “the impoverished record on which [adjudicators] purport to make credibility calls must, if a balance of probabilities is properly applied, yield a larger number of cases in which the burden of proof is not carried” (para. 35). He also stated that where a tribunal performs an essentially judicial function and not a policy driven function, “reasonableness may be tantamount to correctness” (para. 52). 59 I acknowledge that the review process is far from perfect. There is no cross-examination of any of the parties, and the adjudicator is typically asked to make credibility findings on the basis of a written record. As a matter of practice, the peace officer does not respond to the affidavit or statement provided by the person disputing the roadside prohibition. However, this is the administrative scheme enacted by the Legislature to address the problem of drinking drivers. There is no constitutional challenge of the legislation presently before the court: see Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 (S.C.C.), for the constitutional challenge prior to amendments to the legislation in 2012 enhancing the scope of the review process. 60 I agree there will be some cases where the written record will not permit the adjudicator to decide which version of events is true. In such a case, the adjudicator cannot be satisfied that there was compliance with the statutory requirements, and the driving prohibition must be set aside. 66 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

If, however, the judicial review judge was suggesting that this should be the result in the majority of cases, I respectfully disagree. Each review must be determined on the basis of the evidence before the adjudicator, and it would be an error for a judge to apply the reasonableness standard on the basis of a presumption that the adjudicator will not be able to make the necessary credibility findings in the majority of reviews (or any other proportion of reviews). 61 Secondly, if the judge was suggesting that the standard of review for an adjudicator’s decision in this scheme should be correctness or closer to the correctness end of the reasonableness spectrum, I also disagree. The decision in Wilson has confirmed that the standard of review for this type of decision is reasonableness, not correctness. A suggestion that there are different gradations within the reasonableness standard is contrary to what the Supreme Court of Canada said in Ryan v. Law Society (New Brunswick), 2003 SCC 20 (S.C.C.): [46] Judicial review of administrative action on a standard of reasonableness involves deferential self-discipline. A court will often be forced to accept that a decision is reasonable even if it is unlikely that the court would have reasoned or decided as the tribunal did (see [Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748], at paras. 78-80). If the standard of reasonableness could “float” this would remove the discipline involved in judicial review: courts could hold that decisions were unreasonable by adjusting the standard towards correctness instead of explaining why the decision was not supported by any reasons that can bear a somewhat probing examination. Although Ryan pre-dates Dunsmuir, the above comments were not affected by Dunsmuir: see Mills v. Ontario (Workplace Safety & Insurance Appeals Tribunal), 2008 ONCA 436 (Ont. C.A.) at paras. 18 and 19; Guinn v. Manitoba, 2009 MBCA 82 (Man. C.A.) at para. 29; and Alberta Teachers at para. 47. 62 I now turn to a consideration of whether the judicial review judge properly applied the reasonableness standard to the adjudicator’s decision.

Application of Reasonableness Standard of Review 63 The judicial review judge found four aspects of the adjudicator’s reasoning to amount to an unsound approach to credibility: Kenyon v. B.C. (Superintendent of Motor Vehicles) Tysoe J.A. 67

(a) the adjudicator found it difficult to understand that, on Mr. Ken- yon’s version of the events, he would have provided a breath sample; (b) the adjudicator found it unlikely that the bystanders who made the report to the police officer would describe someone getting out of a vehicle to urinate as “someone running down the road naked”; (c) the adjudicator found it difficult “to accept that ‘Sharon’ would remove your keys from the ignition if she wasn’t coming back or that you would allow a stranger to take your keys”; and (d) the adjudicator found it puzzling that when faced with the officer’s belief that Mr. Kenyon was impaired, Mr. Kenyon replied “you got me”. 64 With respect to the first aspect, I do not agree with the judge that this reasoning is specious. It may be that the judge may not have reasoned in this fashion, but I cannot say that the reasoning of the adjudicator in this respect was flawed or unreasonable. If a person was not the driver, it is not unreasonable to expect the person to question why they were being required to give a breath sample. The judge reasoned that the demand for the breath sample was, according to Mr. Kenyon’s statement, made after Mr. Kenyon told the officer about Sharon or, in the judge’s words, “after he had been disbelieved by the officer”. With respect, there was nothing on the record to indicate that Mr. Kenyon was aware the officer disbelieved him and that this disbelief was the reason Mr. Kenyon did not question why he was being asked to give a breath sample. 65 With respect to the second aspect, the judge stated that there was no basis on the limited evidence for considering this to be a contradiction. However, the two versions are not the same and that was all the adjudicator was saying. One would not expect bystanders to say that someone was running down the road naked if they had simply observed a naked man exit the vehicle and go into the bushes to urinate. It appears that the adjudicator considered Mr. Kenyon’s version of events was not consistent with the witnesses’ description of him. Although I may not have reasoned in this fashion, I cannot say that the adjudicator’s reasoning was unreasonable. 66 With respect to the third aspect, the judge said that the adjudicator’s observation failed to come to grips with the fact there was no evidence the keys were present at the scene and it was virtually certain the officer would have seized the keys if they were there. It is true the evidence did not permit the adjudicator to decide whether the keys were at the scene 68 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

but, unlike Whyte, it was unnecessary for her to do so. The location of the keys was not the only means of resolving the issue of whether Mr. Kenyon was a driver. There was evidence from the officer that he had seen the vehicle moving when Mr. Kenyon was the only person inside it. There was no need for the officer to include anything in his report about the keys because it would not have been an issue in the officer’s mind. 67 A fair interpretation of what the adjudicator was saying in her decision is that she found Mr. Kenyon’s story to be inherently implausible. She began the main paragraph of her reasoning with the statement that she did not find Mr. Kenyon’s account to be convincing. She appears to have put the name “Sharon” in quotation marks to indicate that she did not believe Sharon existed. She indicates it is implausible that the owner of a vehicle would allow a virtual stranger to leave the vehicle with the keys, whether the stranger was expected to come back or not. In my opinion, it was not unreasonable for the adjudicator to consider Mr. Ken- yon’s story to be inherently implausible. 68 The fourth point made by the judge related to Mr. Kenyon’s response “you got me”. The judge found it illogical for the adjudicator to conclude that Mr. Kenyon was saying something about his driving because it appears to have been in answer to the officer’s belief that Mr. Kenyon was intoxicated. The report of the police officer is not well worded in this respect, and it is not clear what the officer had said to Mr. Kenyon to elicit this response. It must be borne in mind the officer’s report stated that Mr. Kenyon had twice denied drinking. While the adjudicator’s articulation of her reasoning could have been better, I do not agree with the judge that it was illogical to conclude that Mr. Kenyon’s comment could be interpreted as an admission that he was driving. In saying “you got me”, Mr. Kenyon could reasonably be interpreted to be admitting to having done something wrong. It is not illegal to be intoxicated, but it is illegal to drive when one’s blood alcohol level is above the legislated limit. 69 In my opinion, the adjudicator’s reasoning process was not so lacking in logic or otherwise flawed to make her conclusion unreasonable. When her reasons are read as a whole, it is apparent the adjudicator found Mr. Kenyon’s version of the events to be inherently implausible; she also relied on actions of Mr. Kenyon at the scene that were not consistent with his version. It is my view that the judge did not properly apply the reasonableness standard of review to the adjudicator’s reasons and held the adjudicator to a higher standard than is required by law. Kenyon v. B.C. (Superintendent of Motor Vehicles) Dickson J.A. 69

Conclusion 70 I would allow the appeal, set aside the order of the judicial review judge and reinstate the adjudicator’s confirmation of the driving prohibition. The Superintendent does not seek costs, and I would order that each party bear their own costs of this appeal.

Groberman J.A.:

I agree:

Dickson J.A.:

I agree: Appeal allowed. 70 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

[Indexed as: Floate v. Gas Plus Inc.] Terence David Floate and Heather May Frances Cummings, Plaintiffs and Gas Plus Inc., Handel Transport (Northern) Ltd., Handel Transport Ltd., Tank Testers Plus Inc., Tri-Con Transport Ltd., Salvin H. Handel (also known as Sal Handel), Shirley Handel, ABC Corporation or John Doe, Leak Technologies Solutions Ltd., Levelton Consultants Ltd., Tiamat Environmental Consultants Ltd., Shell Canada Limited, The City of Calgary, Darren Bourget, and Her Majesty the Queen in Right of Alberta as represented by The Minister of Environment and Sustainable Resource Development, Defendants and Sabatini Earth Technologies Inc., Levelton Consultants Ltd., Ken Hugo, Dover Corporation (Canada) Limited operating under the trade name and style of OPW Fuel Management Systems of Canada, OPW Fueling Containment Systems Inc., and Flex-Pression Limitee also known as Pressure-Flex Limited, Third Party Defendants John David Hillier, Melinda Jane Hillier, Aron McIntyre by his litigation representative, Melinda Jane Hillier, Jordan Alexander Hillier by his litigation representative, Melinda Jane Hillier, Jason William Hillier by his litigation representative, Melinda Jane Hillier, Plaintiffs and Gas Plus Inc., Handel Transport (Northern) Ltd., Handel Transport Ltd., Tank Testers Plus Inc., Tri-Con Transport Ltd., Salvin H. Handel (also known as Sal Handel), Shirley Handel, ABC Corporation or John Doe, Leak Technologies Solutions Ltd., Levelton Consultants Ltd. and Shell Canada Limited, The City of Calgary, Darren Bourget, and Her Majesty the Queen in Right of Alberta as represented by The Minister of Environment and Sustainable Resource Development, Sabatini Earth Technologies Inc., Levelton Consultants Ltd., Ken Hugo, Dover Corporation (Canada) Limited operating under the trade name and style of OPW Fuel Management Systems Inc., and Flex-Pression Limittee also known as Pressure-Flex Limited, Third Party Defendants John Stuart Whitlock and Maureen Ann Whitlock, Plaintiffs and Gas Plus Inc., Handel Transport (Northern) Ltd., Handel Transport Ltd., Tank Testers Plus Inc., Tri-Con Transport Ltd., Floate v. Gas Plus Inc. 71

Salvin H. Handel (also known as Sal Handel), Shirley Handel, Lorne Anderson also operating as Lorne Anderson Enterprises, ABC Corporation or John Doe, Leak Technologies Solutions Ltd., Levelton Consultants Ltd., Tiamat Environmental Consultants Ltd., Shell Canada Limited, The City of Calgary, Darren Bourget, and Her Majesty the Queen in Right of Alberta as represented by The Minister of Environment and Sustainable Resource Development, Defendants and Sabatini Earth Technologies Inc., Levelton Consultants Ltd., Ken Hugo, Dover Corporation (Canada) Limited operating under the trade name and style of OPW Fuel Management Systems of Canada, OPW Fueling Containment Systems Inc., and Flex-Pression Limitee also known as Pressure-Flex Limited, Third Party Defendants Tsiporah Holdings Inc. and T.E.C. Management Services Inc., Plaintiffs and Gas Plus Inc., Handel Transport (Northern) Ltd., Handel Transport Ltd., Tank Testers Plus Inc., Tri-Con Transport Ltd., Salvin H. Handel (also known as Sal Handel), Shirley Handel, Lorne Anderson also operating as Lorne Anderson Enterprises, ABC Corporation or John Doe, Leak Technologies Solutions Ltd., Levelton Consultants Ltd., Tiamat Environmental Consultants Ltd., Shell Canada Limited, The City of Calgary, Darren Bourget, and Her Majesty the Queen in Right of Alberta as represented by The Minister of Environment and Sustainable Resource Development, Defendants and Sabatini Earth Technologies Inc., Levelton Consultants Ltd., Ken Hugo, Dover Corporation (Canada) Limited operating under the trade name and style of OPW Fuel Management Systems of Canada, OPW Fueling Containment Systems Inc., and Flex-Pression Limitee also known as Pressure-Flex Limited, Third Party Defendants Augustine Yip and Monica Skrukwa Professional Corporation, Augustine Liu Lune Yip, and Monica Joan Skrukwa, Plaintiffs and Gas Plus Inc., Handel Transport (Northern) Ltd., Handel Transport Ltd., Tank Testers Plus Inc., Tri-Con Transport Ltd., Salvin H. Handel (also known as Sal Handel), Shirley Handel, Lorne Anderson also operating as Lorne Anderson Enterprises, ABC Corporation or John Doe, Leak Technologies Solutions Ltd., Levelton Consultants Ltd., Tiamat Environmental Consultants Ltd., Shell Canada Limited, The City of Calgary, Darren Bourget, and Her Majesty the Queen in Right of Alberta 72 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

as represented by The Minister of Environment and Sustainable Resource Development, Defendants and Sabatini Earth Technologies Inc., Levelton Consultants Ltd., Ken Hugo, Dover Corporation (Canada) Limited operating under the trade name and style of OPW Fuel Management Systems of Canada, OPW Fueling Containment Systems Inc., and Flex-Pression Limitee also known as Pressure-Flex Limited, Third Party Defendants James Andrew Ross and Bonnie Lori Ross, Plaintiffs and Gas Plus Inc., Handel Transport (Northern) Ltd., Handel Transport Ltd., Tank Testers Plus Inc., Tri-Con Transport Ltd., Salvin H. Handel (also known as Sal Handel), Shirley Handel, Lorne Anderson also operating as Lorne Anderson Enterprises, ABC Corporation or John Doe, Leak Technologies Solutions Ltd., Levelton Consultants Ltd., Tiamat Environmental Consultants Ltd., Shell Canada Limited, The City of Calgary, Darren Bourget, and Her Majesty the Queen in Right of Alberta as represented by The Minister of Environment and Sustainable Resource Development, Defendants and Sabatini Earth Technologies Inc., Levelton Consultants Ltd., Ken Hugo, Dover Corporation (Canada) Limited operating under the trade name and style of OPW Fuel Management Systems of Canada, OPW Fueling Containment Systems Inc., and Flex-Pression Limitee also known as Pressure-Flex Limited, Third Party Defendants Francesco Gordon Mele and Alison Wyn Hayter, Plaintiffs and Gas Plus Inc., Handel Transport (Northern) Ltd., Handel Transport Ltd., Tank Testers Plus Inc., Tri-Con Transport Ltd., Salvin H. Handel (also known as Sal Handel), Shirley Handel, Lorne Anderson also operating as Lorne Anderson Enterprises, ABC Corporation or John Doe, Leak Technologies Solutions Ltd., Levelton Consultants Ltd., Tiamat Environmental Consultants Ltd., Shell Canada Limited, The City of Calgary, Darren Bourget, and Her Majesty the Queen in Right of Alberta as represented by The Minister of Environment and Sustainable Resource Development, Her Majesty the Queen in Right of Alberta as represented by The Minister of Health and Alberta Health Services, Defendants and Sabatini Earth Technologies Inc., Levelton Consultants Ltd., Ken Hugo, Dover Corporation (Canada) Limited operating under the trade name and style of OPW Fuel Management Systems of Canada, OPW Fueling Floate v. Gas Plus Inc. 73

Containment Systems Inc., and Flex-Pression Limitee also known as Pressure-Flex Limited, Third Party Defendants Gas Plus Inc. and Handel Transport (Northern) Ltd., Plaintiffs and Levelton Consultants Ltd., Sabatini Earth Technologies Inc., Ken Hugo, Tank Testers Plus Inc., Dover Corporation operating under the trade name and style of OPW Engineered Systems, Hose Master Inc., and the City of Calgary, Defendants Alberta Court of Queen’s Bench Docket: Calgary 1201-09950, 1201-09953, 1201-11013, 1201- 13863, 1201-14822, 1201-14955, 1201-15323, 1201-05626 2015 ABQB 545 P.R. Jeffrey J. Judgment: September 4, 2015 Civil practice and procedure –––– Discovery — Introductory — Deemed or implied undertaking –––– Plaintiffs brought actions related to alleged release of hydrocarbons into environment from service station — Respondents G Inc. and H Ltd. were defendants in action that were investigated and convicted of regulatory offences related to release — Defendants ESRD and AHS were agencies of provincial government that were in possession of records related to release that they acquired during their regulatory activities — ESRD and AHS brought application for ruling that implied undertaking rule did not apply — Application granted — Records in dispute were relevant and material — Records already in public domain were not subject to implied undertaking — Records that were not already in public domain included some that regulators did not receive from another party and those records were not subject to implied undertaking — Re- mainder of records in possession of regulators were not subject to implied undertaking — Legislators, not courts, controlled regulators’ process and there was no statutory, regulatory or regulator-specific practice that imposed undertaking here — Burden of implied undertaking proposed by respondents outweighed any benefit — Respondents’ approach would have effect of reversing presumptive discoverability to presumptive exclusion of information unless litigant could persuade court to lift undertaking for specific records whenever regulator was one of litigants — Prospects of just decision improved with greater access to relevant and material information — Implied undertaking was not necessary to ensure that any third parties, whose privacy or confidentiality interests might be affected by disclosure, were given opportunity to assert those interests before disclosure or production of records — Some of regulators’ functions involved decisions affecting privacy interests and were subject to curial review. 74 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

Cases considered by P.R. Jeffrey J.: Anadarko Canada Corp. v. Gibson Petroleum Co. (2004), 2004 ABCA 154, 2004 CarswellAlta 569, 31 Alta. L.R. (4th) 229, (sub nom. Husky Oil Operations Ltd. v. Anadarko Canada Corp.) 354 A.R. 16, (sub nom. Husky Oil Operations Ltd. v. Anadarko Canada Corp.) 329 W.A.C. 16, [2004] A.J. No. 517 (Alta. C.A.) — considered Bennett v. State Farm Fire and Casualty Co. (2013), 2013 NBCA 4, 2013 Car- swellNB 2, 2013 CarswellNB 3, 1032 A.P.R. 290, 398 N.B.R. (2d) 290, 358 D.L.R. (4th) 229, 18 C.C.L.I. (5th) 29, [2013] N.B.J. No. 4 (N.B. C.A.) — considered Canada (Solicitor General) v. Ontario (Royal Commission of Inquiry into Confidentiality of Health Records) (1981), 23 C.R. (3d) 338, 23 C.P.C. 99, 128 D.L.R. (3d) 193, (sub nom. Inquiry into Confidentiality of Health Records in Ontario, Re) 38 N.R. 588, 62 C.C.C. (2d) 193, [1981] 2 S.C.R. 494, 1981 CarswellOnt 394, 1981 CarswellOnt 617 (S.C.C.) — referred to Consolidated NBS Inc. v. Price Waterhouse Ltd. (1994), 3 C.C.L.S. 186, 69 O.A.C. 236, 24 C.P.C. (3d) 185, 111 D.L.R. (4th) 656, 1994 CarswellOnt 494, [1994] O.J. No. 263 (Ont. Div. Ct.) — considered Crevier v. Quebec (Attorney General) (1981), [1981] 2 S.C.R. 220, 127 D.L.R. (3d) 1, 38 N.R. 541, 1981 CarswellQue 109, 1981 CarswellQue 109F, [1981] S.C.J. No. 80 (S.C.C.) — referred to Doucette (Litigation Guardian of) v. Wee Watch Day Care Systems Inc. (2008), 2008 SCC 8, 2008 CarswellBC 411, 2008 CarswellBC 412, 75 B.C.L.R. (4th) 1, [2008] 4 W.W.R. 1, 50 C.P.C. (6th) 207, [2008] S.C.J. No. 8, 290 D.L.R. (4th) 193, (sub nom. Doucette v. Wee Watch Day Care Systems Inc.) 372 N.R. 95, (sub nom. Juman v. Doucette) [2008] 1 S.C.R. 157, (sub nom. Doucette v. Wee Watch Day Care Systems Inc.) 252 B.C.A.C. 1, 422 W.A.C. 1 (S.C.C.) — referred to Dreco Energy Services Ltd. v. Wenzel (2007), 2007 ABQB 635, 2007 Carswell- Alta 1919, [2007] A.J. No. 1539 (Alta. Q.B.) — referred to Edmonton Police Service v. Alberta (Law Enforcement Review Board) (2014), 2014 ABCA 267, 2014 CarswellAlta 1412, 377 D.L.R. (4th) 285, [2015] 1 W.W.R. 496, 580 A.R. 165, 620 W.A.C. 165, 6 Alta. L.R. (6th) 1 (Alta. C.A.) — considered Firemaster Oilfield Services Ltd. v. Safety Boss (Canada) (1993) Ltd. (2000), 2000 CarswellAlta 445, [2000] 9 W.W.R. 655, 81 Alta. L.R. (3d) 385, 47 C.P.C. (4th) 108, 2000 ABQB 932, 285 A.R. 141, [2000] A.J. No. 1466 (Alta. Q.B.) — referred to Firemaster Oilfield Services Ltd. v. Safety Boss (Canada) (1993) Ltd. (2001), 2001 ABCA 248, 2001 CarswellAlta 1464, [2002] 1 W.W.R. 434, 96 Alta. L.R. (3d) 212, 293 A.R. 366, 257 W.A.C. 366, 15 C.P.C. (5th) 73, [2001] A.J. No. 1317 (Alta. C.A.) — referred to Floate v. Gas Plus Inc. 75

Fullowka v. Royal Oak Mines Inc. (1998), 1998 CarswellNWT 4, [1998] N.W.T.R. 42, [1998] N.W.T.J. No. 11 (N.W.T. S.C.) — followed Gill v. 735458 Alberta Inc. (2003), 2003 ABQB 501, 2003 CarswellAlta 811, 15 Alta. L.R. (4th) 362, 36 C.P.C. (5th) 256, 38 C.P.C. (5th) 191, [2003] A.J. No. 739 (Alta. Master) — referred to Goodman v. Rossi (1995), 12 C.C.E.L. (2d) 105, 37 C.P.C. (3d) 181, 125 D.L.R. (4th) 613, 24 O.R. (3d) 359, 83 O.A.C. 38, 1995 CarswellOnt 146, [1995] O.J. No. 1906 (Ont. C.A.) — followed Hacock v. Vallaincourt (1989), 40 B.C.L.R. (2d) 83, 63 D.L.R. (4th) 205, 1989 CarswellBC 181, [1989] B.C.J. No. 1860 (B.C. C.A.) — considered Harbour v. Bangs (2002), 2002 CarswellOnt 3559, 32 R.F.L. (5th) 359, [2002] O.J. No. 4148 (Ont. C.J.) — considered Jackson v. A. (D.) (2005), 2005 ABQB 824, 2005 CarswellAlta 1606, 385 A.R. 307 (Alta. Q.B.) — referred to Jacques c. P´etroles Irving inc. (2014), 2014 SCC 66, 2014 CarswellQue 9818, 2014 CarswellQue 9819, [2014] S.C.J. No. 66, [2014] A.C.S. No. 66, 377 D.L.R. (4th) 573, (sub nom. Imperial Oil v. Jacques) 463 N.R. 170, 316 C.C.C. (3d) 1, (sub nom. Imperial Oil v. Jacques) [2014] 3 S.C.R. 287, (sub nom. Imperial Oil v. Jacques) 320 C.R.R. (2d) 200 (S.C.C.) — referred to Lastiwka v. TD Waterhouse Investor Services (Canada) Inc. (2004), 2004 ABQB 740, 2004 CarswellAlta 1334, [2004] A.J. No. 1160 (Alta. Q.B.) — referred to Lindsey v. Le Sueur (1913), 29 O.L.R. 648, 15 D.L.R. 809, 1913 CarswellOnt 876 (Ont. C.A.) — followed M. (D.G.) v. M. (K.M.) (2000), [2000] A.J. No. 34, 2000 ABQB 12, 2000 CarswellAlta 1500, 257 A.R. 232 (Alta. Q.B. [In Chambers]) — referred to Merrill Lynch, Royal Securities Ltd./Lt´ee v. Granove (1985), [1985] 5 W.W.R. 589, 35 Man. R. (2d) 194, 1985 CarswellMan 193, [1985] M.J. No. 203 (Man. C.A.) — considered P. (D.) v. Wagg (2004), 2004 CarswellOnt 1983, 46 C.P.C. (5th) 13, 239 D.L.R. (4th) 501, 184 C.C.C. (3d) 321, 187 O.A.C. 26, [2004] O.J. No. 2053, 71 O.R. (3d) 229, 120 C.R.R. (2d) 52 (Ont. C.A.) — followed R. v. Nikolovski (1996), 111 C.C.C. (3d) 403, 31 O.R. (3d) 480 (headnote only), 141 D.L.R. (4th) 647, 3 C.R. (5th) 362, 96 O.A.C. 1, [1996] 3 S.C.R. 1197, 204 N.R. 333, 1996 CarswellOnt 4425, 1996 CarswellOnt 4426, [1996] S.C.J. No. 122, EYB 1996-67711 (S.C.C.) — considered R. v. Stinchcombe (1991), [1992] 1 W.W.R. 97, [1991] 3 S.C.R. 326, 130 N.R. 277, 83 Alta. L.R. (2d) 193, 120 A.R. 161, 8 C.R. (4th) 277, 68 C.C.C. (3d) 1, 8 W.A.C. 161, 18 C.R.R. (2d) 210, 1991 CarswellAlta 192, 1991 CarswellAlta 559, [1991] S.C.J. No. 83, EYB 1991-66887 (S.C.C.) — followed Secure Energy Services Inc. v. CCS Corp. (2014), 2014 ABQB 107, 2014 CarswellAlta 279, (sub nom. CCS Corp. v. Secure Energy Services Inc.) 587 76 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

A.R. 1, [2014] A.J. No. 185, 6 Alta. L.R. (6th) 349 (Alta. Q.B.) — considered Slavutych v. Baker (1975), [1976] 1 S.C.R. 254, (sub nom. Slavutch v. Board of Governors of University of Alberta) 3 N.R. 587, [1975] 4 W.W.R. 620, 38 C.R.N.S. 306, 75 C.L.L.C. 14,263, 55 D.L.R. (3d) 224, 1975 CarswellAlta 145F, 1975 CarswellAlta 39, [1975] S.C.J. No. 29 (S.C.C.) — referred to Strass v. Goldsack (1975), [1975] 6 W.W.R. 155, 58 D.L.R. (3d) 397, 1975 CarswellAlta 68 (Alta. C.A.) — referred to Tilley v. Hails (1993), 12 O.R. (3d) 306, 18 C.P.C. (3d) 381, 1993 CarswellOnt 433, [1993] O.J. No. 333 (Ont. Gen. Div.) — referred to Statutes considered: 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 s. 10(b) — considered s. 24(2) — considered Competition Act, R.S.C. 1985, c. C-34 Generally — referred to s. 29 — referred to s. 66.1 [en. 1999, c. 2, s. 19] — referred to Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to Environment Act, S.N.S. 1994-95, c. 1 s. 70 — referred to Environmental Protection Act, R.S.N.W.T. 1988, c. E-7 Generally — referred to Environmental Protection Act, R.S.O. 1990, c. E.19 s. 10 — considered s. 186 — considered Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12 Generally — referred to s. 35 — considered s. 35(9) — referred to Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25 Generally — referred to s. 3(c) — considered s. 3(d) — considered s. 40(1) — considered Municipal Act, R.S.B.C. 1979, c. 290 Generally — referred to Regional Health Authorities Act, R.S.A. 2000, c. R-10 Generally — referred to Safety Codes Act, R.S.A. 2000, c. S-1 Generally — referred to Floate v. Gas Plus Inc. P.R. Jeffrey J. 77

Securities Act, R.S.O. 1990, c. S.5 Generally — referred to Rules considered: Alberta Rules of Court, Alta. Reg. 124/2010 R. 5.6(1) — considered R. 5.6(2)(b) — considered R. 5.11 — considered R. 5.33 — considered Sched. 2 — referred to Sched. 2, (a) — considered Sched. 2, (b) — considered Sched. 2, (c) — considered Sched. 2, (d) — considered Sched. 2, (e) — considered Sched. 2, (f) — considered Forms considered: Alberta Rules of Court, Alta. Reg. 124/2010 Sched. A, Form 26 — referred to Regulations considered: Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12 Disclosure of Information Regulation, Alta. Reg. 273/2004 Generally — referred to Public Interest Disclosure (Whistleblower Protection) Act, S.A. 2012, c. P-39.5 Public Interest Disclosure (Whistleblower Protection) Regulation, Alta. Reg. 71/2013 Generally — referred to

APPLICATION by defendants for ruling that implied undertaking rule did not apply to records in their possession.

James Mallet, for Applicant, Her Majesty the Queen in Right of Alberta Ken H. Lewis, Urvil U. Thakor, for Applicant, Alberta Health Services Tom C. Stepper, Richard I. John, for Respondents, Gas Plus Inc. and Handel Transport (Northern) Ltd.

P.R. Jeffrey J.:

1 These applications address whether the “implied undertaking” not to use information received via discovery in a civil proceeding, except for purposes of that proceeding, applies to the records received by a govern- 78 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

mental agency in the course of its regulatory activities, when that governmental agency later finds itself in civil litigation. 2 These applications are brought by Her Majesty the Queen in Right of Alberta as represented by The Minister of Environment and Sustainable Resources Development (“ESRD”)1 and Her Majesty the Queen in Right of Alberta as represented by The Minister of Health and Alberta Health Services (“AHS”). ESRD is one of many defendants in the actions brought by the Plaintiffs related to an alleged release of hydrocarbons into the environment from a Gas Plus service station in Calgary, Alberta (the “Release”). AHS is a defendant in one of those actions. 3 The Respondents Gas Plus Inc. (“Gas Plus”) and Handel Transport (Northern) Ltd. (“HTNL”) are two related companies that were investigated and ultimately convicted of regulatory offences related to the Re- lease. They are co-defendants in these actions with other corporations and with the Applicants. They have issued a third party notice against ESRD in at least one of the actions. 4 ESRD acquired records during its investigations under the EPEA of possible regulatory offences related to the Release. It concurrently acquired records in the course of conducting various other non-enforcement regulatory activities. ESRD believes it is required, in the context of these actions, to produce all these records unless they are privileged. 5 The Respondents argue the common law implied undertaking applies to records in the possession of the investigative agents and also to the records in the possession of non-enforcement regulatory agents, restricting their disclosure for any purpose other than that for which they were acquired (absent an order of the court). 6 The Applicants do not share that view. After being put on notice of the Gas Plus position, as a precaution, ESRD brought this Application for a ruling that the implied undertaking does not apply here and for an order directing it to produce the records at issue.

1 For the purposes of these applications, I am addressing the records that “Her Majesty the Queen in Right of Alberta as represented by The Minister of Envi- ronment and Sustainable Resource Development” has asked the court to consider, without fully understanding the scope of authority of the party so described or the breadth of power that party may have to produce records in the possession of other statutory actors under, for example, the Alberta Environmen- tal Protection and Enhancement Act, RSA 2000, c E-12 (the “EPEA”). I refer to that party in the same way the parties have, as the “ESRD”. Floate v. Gas Plus Inc. P.R. Jeffrey J. 79

7 The other applicant, AHS, is a regional health authority under the Re- gional Health Authorities Act, RSA 2000, c R-10. Its records came into its possession in the course of performing its own regulatory activities. It has already disclosed and produced all records in its possession that it does not consider to be subject to a privilege. AHS supports ESRD’s application and applies for a declaration that there is no implied undertaking applicable to its records. There is some overlap between the records of AHS and ESRD (collectively, the “Regulators”). 8 If I find that the Regulators’ records are subject to an implied undertaking, then the Regulators ask that any such undertaking be lifted. In the alternative, they seek an order requiring production by the Gas Plus De- fendants of all documents disclosed to them by the Crown prosecutor in two provincial court regulatory offence prosecutions (the “Stinchcombe Disclosure”).

Background 9 Following the Release ESRD investigated possible breaches of the EPEA (the “EPEA Offence Investigation”). The defendants Gas Plus, HTNL, Handel Transport Ltd., Tank Testers Plus Inc., and Tri-Con Transport Ltd. (collectively the “Gas Plus Defendants”) were investigated. Some of ESRD’s records were collected or generated during this Investigation (the “Offence Investigation Records”). They include records obtained from Gas Plus through execution of a search warrant at the Gas Plus premises and records obtained from the City of Calgary Fire Department through a production order. They also include records originating from Newalta Corporation, Environmental Diagnostics Inc., Power Properties Ltd., Curtis Engineering Associates Ltd., Levelton Consultants, Leak Technologies Solutions Inc., and Tiamat Environmen- tal Consultants Ltd. 10 The EPEA Offence Investigation was separate from various regulatory activities carried out by ESRD in relation to the Release (the “Regu- latory Activities”). In its affidavit of records, ESRD has separately listed its records sourced from these various Regulatory Activities (the “Regu- latory Activities Records”) from those comprising the Offence Investiga- tion Records (collectively, the “Records”). 11 The nature of all the various ‘non-enforcement’ Regulatory Activities was not made clear. What is known is that ESRD maintained, and continues to maintain, a separate Regulatory Activities file relating to the Re- lease. Furthermore, a series of Ministerial Orders required, and continue 80 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

to require, Gas Plus to provide certain information to ESRD. The Regu- latory Activities Records also include records obtained from a number of parties upon request. No further specifics were provided as to the nature of the Regulatory Activities or the associated Regulatory Activities Records. This is not a criticism, just a description of the manner in which the parties chose to advance these applications. 12 Counsel for ESRD said that none of its records were compelled as part of any sort of court or tribunal process. 13 ESRD gave the Offence Investigation Records to the Crown’s office in 2012. The Crown laid charges against the Gas Plus Defendants under the EPEA and, in the context of the ensuing prosecutions, disclosed some of the Offence Investigation Records to satisfy its disclosure obligations identified in Stinchcombe. ESRD says that the Stinchcombe Disclosure contains only records sent to Gas Plus by the Crown from the investigator’s file in the “EPEA prosecution.” 14 The City of Calgary also laid charges against the Gas Plus Defendants under the Safety Codes Act, RSA 2000, c S-1 for breaches of the Alberta Fire Code. The city prosecutors provided their own Stinchcombe disclosure in the Safety Codes Act prosecution. 15 The EPEA prosecution was against all five Gas Plus Defendants. Gas Plus and the Crown signed an Agreed Statement of Facts that became an exhibit in those enforcement proceedings.In December 2013, Gas Plus pleaded guilty to the first two counts in exchange for withdrawal of all other counts against it and withdrawal of all counts against the other four defendants. 16 The City of Calgary’s Safety Codes Act prosecution was against Gas Plus and HTNL as co-accused. In March 2013, Gas Plus, HTNL and the City of Calgary signed an Agreed Statement of Facts that became an exhibit in those proceedings. Gas Plus pleaded guilty to two counts and a third count was withdrawn, while all three counts were withdrawn as against HTNL. The Stinchcombe Disclosures did not become part of the public record in either court proceeding. 17 AHS monitored the air quality of houses that may have been im- pacted by gas vapours following the Release. Over the course of its mon- itoring AHS obtained records related to the Release, as well as documents relating to air quality testing and gas vapour levels. 18 Neighbours of the service station commenced these civil actions against the Gas Plus Defendants alleging injuries to person and property, Floate v. Gas Plus Inc. P.R. Jeffrey J. 81

but also claiming against the Regulators for negligence, recklessness, carelessness, bad faith, abuse of public office and more. No claim is made in respect of the EPEA Offence Investigation. 19 All parties that supplied records to the ESRD investigators were provided copies of these applications. ESRD notified Newalta Corporation, Environmental Diagnostics Inc., Power Properties Ltd., and Curtis Engi- neering Associates Ltd. The other sources of records included within the Offence Investigation Records appear to all be parties to one or some of these consolidated actions under case management and therefore also had notice of these applications.

Positions of the Parties 20 The Applicants say the implied undertaking exists at common law but that it applies only to discovery processes that are part of civil litigation and quasi-judicial litigation. Nothing beyond that has been recognized in the jurisprudence. Since none of the Regulators’ records were compelled as part of a court or tribunal process, the Applicants submit that no implied undertaking applies to those records. 21 The Respondents say the law implies an undertaking by the Regula- tors that the information they received shall not be used for a collateral purpose without court order, unless it already has been placed on the public record. 22 The Respondents are particularly concerned about records received by ESRD after the commencement of these actions. They argue that the implied undertaking would protect against ESRD, and regulators like it, procuring information by statutory authority under the pretext of it relating to an investigation or some other regulatory purpose, to use to their advantage in the civil litigation. The implied undertaking, they argue, would ensure regulators do not gain such improper advantage. 23 The Respondents are also concerned about “information received from third parties, interviews of witnesses, and documents that would have been provided from third parties”. They express frustration that the current form of disclosure does not help them identify how the records came into the Regulators’ possession — for example whether from a search and seizure, from one of its contracted experts, from a property 82 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

owner, from another regulator, from the AEAB process, from the EPO process, and so on.2 24 Gas Plus alerted ESRD of its position and suggested that, at a minimum, ESRD had to first conduct a screening process like the one established in P. (D.) v. Wagg (2004), 71 O.R. (3d) 229 (Ont. C.A.), discussed in greater detail below (commencing at para [54]). 25 Only Gas Plus and HTNL oppose these applications; the other Gas Plus Defendants take no position. The Plaintiffs take no position on the Applications. None of the other sources of Offence Investigation Records attended to resist production of records sourced from them. 26 For the purposes of these applications, the parties have assumed that all records in dispute are relevant and material. They also agree that the admissibility of the records at trial is not a consideration at this stage of the proceedings and that production of a record at this stage is not determinative of admissibility at trial. I agree. See, for example: Lastiwka v. TD Waterhouse Investor Services (Canada) Inc., 2004 ABQB 740 (Alta. Q.B.) at para 17. Similarly, the conclusion on these applications does not preclude any party later on arguing in respect of any of the records that it is or is not discoverable or producible on any other grounds. 27 Further, the parties agree that all records used in one of the previous provincial court enforcement proceedings, such as the Agreed Statements of Facts, are now in the public domain and not subject to any implied undertaking. This also is correct. See, for example: Gill v. 735458 Alberta Inc., 2003 ABQB 501 (Alta. Master) at paras 25 & 26, approved in Dreco Energy Services Ltd. v. Wenzel, 2007 ABQB 635 (Alta. Q.B.) at paras 31 & 32, and Edmonton Police Service v. Alberta (Law Enforcement Review Board), 2014 ABCA 267 (Alta. C.A.) at para 43. 28 The parties also agree that Rule 5.33 of the Alberta Rules of Court, Alta Reg 124/2010 (“ARC”) does not apply to the records in dispute. Rule 5.33 imposes an undertaking on records exchanged in the course of civil proceedings and the parties acknowledge that none of the records in issue were so obtained: 5.33(1) The information and records described in subrule (2) must be treated as confidential and may only be used by the recipient of the information or record for the purpose of carrying on the action in which the information or record was provided or disclosed unless

2 See para [10] above. Floate v. Gas Plus Inc. P.R. Jeffrey J. 83

(a) the Court otherwise orders, (b) the parties otherwise agree, or (c) otherwise required or permitted by law. (2) For the purposes of subrule (1) the information and records are (a) information provided or disclosed by one party to another in an affidavit served under this Division; (b) information provided or disclosed by one party to another in a record referred to in an affidavit served under this Division; (c) information recorded in a transcript of questioning made or in answers to written questions given under this Division. 29 ESRD maintains that the records must be available to all parties for justice to be served and that as a defendant facing allegations of among other things, negligent investigation, it must be allowed to disclose and use the Records in order to properly defend itself. 30 AHS also takes the position that the implied undertaking does not apply. It argues that ESRD’s and its own records arose from carrying out their respective public duties. The records are the property of the public, created in the course of ensuring that justice is done; they are not protected by the same privacy interests as would be the case in civil litigation. 31 AHS notes that the Supreme Court of Canada ordered producible in subsequent civil litigation information that had been acquired by surrep- titious wiretap and disclosed to the accused in parallel criminal proceedings: Jacques c. P´etroles Irving inc., 2014 SCC 66 (S.C.C.). 32 Gas Plus and HTNL (hereinafter referred to as “Gas Plus”) argue that the Offence Investigation Records are subject to an implied undertaking even though they arose from a quasi-criminal regulatory investigation, because they were compelled in a manner akin to compelled civil discovery. The Offence Investigation Records were obtained through the execution of a search warrant, or were compelled or seized under threat of sanction, and are now sought for use in proceedings different from those for which they were obtained. Gas Plus argues that the compulsion at play in regulatory investigations is akin to the compelled nature of civil documentary disclosure. 33 Absent this protection, Gas Plus argues, information disclosed to investigators in the future will be less fulsome. It submits that the requirement of confidentiality that flows from the implied undertaking “clearly and unequivocally” exists in this case. Gas Plus takes the position that 84 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

ESRD bears the onus of demonstrating cogent and persuasive reasons for a superior public interest in production and have not satisfied that onus. 34 If the Court finds an implied undertaking, the Regulators say it should be lifted. They submit that the records relate to the same Release and to Gas Plus’ response to the Release that is the focus of the homeowner actions. The Regulators argue the Gas Plus Defendants were parties to the provincial court actions and now to these civil claims, and the issues and events in the quasi-criminal regulatory actions and these actions are similar, if not the same, thus satisfying all elements of the test for lifting an implied undertaking. 35 AHS submits that to prevent it from disclosing its records on the basis of an implied undertaking would be to favour the privacy interests of Gas Plus over the public interest in seeing justice done. Both Regulators suggest it would be unfair for Gas Plus to have access to some of these Records (those they obtained through the Crown’s Stinchcombe Disclo- sure), while denying access to other parties. 36 Gas Plus says the implied undertaking should be lifted only in exceptional circumstances. It submits that any request to lift the implied undertaking must be accompanied by a proposed screening process, to balance privacy interests with the public interest of justice, and that ESRD has not shown that it has a proper screening mechanism in place. They reject what they perceive as ESRD’s intention to produce the records en masse without any screening process to assess possible privilege and other third party interests. 37 With respect to the Stinchcombe Disclosure in each prosecution, ESRD argues that such “fruits of the investigation” belong not to ESRD or to the investigative agency, but to the public as a whole and they are to be used to ensure that justice is done. ESRD says the Stinchcombe Dis- closure must be disclosed in this litigation to give all parties the opportunity to put all relevant evidence before the court. 38 AHS argues that under Rule 5.6(1) of the ARC, Gas Plus must disclose all records that are relevant and material to the issues in the action.3 Gas Plus did not list the Stinchcombe Disclosure from either provincial court prosecution in their original Affidavit of Records. An Amended

3 Rule 5.6(1) states “An affidavit of records must (a) be in Form 26, and (b) disclose all records that (i) are relevant and material to the issues in the action, and (ii) are or have been under the party’s control.” Floate v. Gas Plus Inc. P.R. Jeffrey J. 85

Affidavit of Records identifies the Stinchcombe Disclosure as a relevant and material record previously but no longer under their control. Gas Plus explained the records were with its former defence counsel (retained on the regulatory prosecutions) and that there were outstanding issues with that counsel such that Gas Plus no longer had the power to compel the return of those records. They say, therefore, they are unable to produce them. 39 AHS argues the Stinchcombe Disclosure must be produced by Gas Plus, since no privilege has been established as protecting the records. AHS submits that if Gas Plus is not compelled to produce these records it will be unfairly advantaged, in that records that are likely to help determine issues at trial will not be available for use by all parties. 40 In March 2015, the Crown prosecutor who conducted the EPEA prosecution against the Gas Plus Defendants consented to the production of the Crown’s Stinchcombe Disclosure for use in these consolidated actions. Similarly, the City of Calgary law department and its prosecutor consented to the disclosure of the Stinchcombe Disclosure package given by the City in that prosecution.

Issues 41 The issues, therefore, are: a. Whether the Regulatory Activities Records are subject to an implied undertaking? b. Whether the Offence Investigation Records are subject to an implied undertaking? c. If any implied undertaking exists, should it be lifted? d. In the alternative, must Gas Plus produce the Stinchcombe Disclosure?

Civil Litigation Record Disclosure 42 Recalling some of the foundational parameters governing record disclosure in civil litigation is warranted as a starting point to the analysis. 43 First, the “ultimate aim of any trial, criminal or civil, must be to seek and to ascertain the truth”: R. v. Nikolovski, [1996] 3 S.C.R. 1197 (S.C.C.), at para 13. The rules and laws of evidence in civil matters allow judges “to find out the truth, and to do justice according to law”: Jacques at para 24. Discovery facilitates the disclosure of evidence that might 86 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

enable the parties to establish the truth of the facts they allege: Jacques at para 26. 44 Second, a civil litigant must seek out all records in its possession, or that it has the power to possess, that provide information relevant and material to an issue in the civil lawsuit. These records are disclosed to the other litigants by affidavit and, unless they are privileged, must be produced, that is, made available for viewing by the other parties. 45 Third, there are established categories of privilege, for example communications between solicitor and client.4 Privilege also can be established on a case-by-case basis if the four part “Wigmore test” is satisfied: Slavutych v. Baker (1975), [1976] 1 S.C.R. 254 (S.C.C.); Strass v. Gold- sack, [1975] 6 W.W.R. 155 (Alta. C.A.). The four Wigmore criteria are: (1) the communications originated in a confidence that they will not be disclosed; (2) confidentiality is essential to the full and satisfactory maintenance of the relations between the parties; (3) the relationship is one that the community believes should be sed- ulously fostered; and (4) the injury that would inure to the relationship by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation. 46 Fourth, counsel representing a party in civil litigation bears a professional obligation to, among other things:

4 Rule 5.6(2)(b) allows a party to specify which records it objects to produce and the grounds for the objection. Form 26, the mandatory form for an Affidavit of Records, states at para 3 that the party “objects to produce the records listed in Schedule 2 on the grounds of privilege identified in that Schedule.” The Schedule identifies six categories of objection: (a) without prejudice communications; (b) communications and copies of communications between solicitor and client; (c) solicitors’ work product; (d) records made or created for the dom- inant purpose of litigation, existing or anticipated; (e) other; and, (f) records that fall into 2 or more of the categories described above. Rule 5.11 gives the Court the authority to order production of a record if it is satisfied that (a) a relevant and material record under the control of a party has been omitted from an affidavit of records, or (b) a claim of privilege has been incorrectly or improperly made in respect of a record. Floate v. Gas Plus Inc. P.R. Jeffrey J. 87

a. Not make use of records accidentally or improperly obtained: Firemaster Oilfield Services Ltd. v. Safety Boss (Canada) (1993) Ltd., 2000 ABQB 932 (Alta. Q.B.), at para 22, see also rule 6.02(12) of the Alberta Law Society Code of Conduct; b. Not use privileged information adverse to the person who made the confidential communication: Tilley v. Hails (1993), 12 O.R. (3d) 306 (Ont. Gen. Div.), see also rule 2.03(2) of the Alberta Law Society Code of Conduct; and c. Request the character of a record be determined by the court, when unsure whether privilege attaches to it: Firemaster Oilfield Services Ltd. v. Safety Boss (Canada) (1993) Ltd., 2001 ABCA 248 (Alta. C.A.) at para 7; M. (D.G.) v. M. (K.M.), 2000 ABQB 12 (Alta. Q.B. [In Chambers]) at paras 6 & 54. This role of the court is not to be arrogated by counsel: M. (D.G.) v. M. (K.M.), at para 54 (collectively, “Counsel’s Obligations”). 47 Fifth, issues of production and confidentiality during the discovery phase of a civil action are a matter of judicial discretion. The Alberta Court of Appeal said in Anadarko Canada Corp. v. Gibson Petroleum Co., 2004 ABCA 154 (Alta. C.A.), at para 8: The granting of an application for production or discovery of documents is a discretionary decision: see, for example, Grain Claims Bureau Ltd. v. Canada Surety Co., [1927] 4 D.L.R. 297 (Man. K.B.); Agala v. Agala, [1998] B.C.J. No. 2827. The granting of a confidentiality order is, similarly, an exercise of judicial discretion: Sierra Club v. Canada (Minister of Finance), [2002] 2 S.C.R. 522.

The Implied Undertaking in Other Contexts 48 The implied undertaking prevents litigants from using evidence obtained in compelled pre-trial discovery or disclosure for any collateral purpose, other than the litigation in which it was produced: Doucette (Litigation Guardian of) v. Wee Watch Day Care Systems Inc., 2008 SCC 8 (S.C.C.) at para 1. In that case the Supreme Court of Canada described the rule as follows, at para 4 (emphasis in original): Thus the rule is that both documentary and oral information obtained on discovery, including information thought by one of the parties to disclose some sort of criminal conduct, is subject to the implied undertaking. It is not to be used by the other parties except for the purpose of that litigation, unless and until the scope of the undertaking is varied by a court order or other judicial order or a situation of immediate and serious danger emerges. 88 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

49 Once the information is placed on the public record, the implied undertaking no longer applies. In Edmonton Police Service v. Alberta (Law Enforcement Review Board), 2014 ABCA 267 (Alta. C.A.), the Alberta Court of Appeal said, at para 43: [...] Typically ... the implied undertaking of confidentiality for information disclosed in pre-trial civil litigation disappears if and when the information becomes evidence at trial, as trials are public proceedings. [...] Any evidence entered at a trial therefore passes into the public domain. 50 The court explained the purpose of the implied undertaking as follows, at para 34: The purpose of the rule arises from the compelled aspect of discovery evidence — i.e. parties to civil litigation are required to disclose relevant information regardless of privacy concerns and whether or not it tends to self-incriminate. At root is the view that each party will provide more complete discovery if given the assurance that disclosure will not be used for collateral purposes.... 51 Courts have had opportunity to consider whether the implied undertaking applies in contexts other than standard civil litigation discovery. It has been applied in public inquiries: see Doucette at para 20, in which the court referred to the inquiry into the Westray Mine tragedy. 52 In Edmonton Police Service, the parties agreed that the implied undertaking applied in the context of proceedings before the Law Enforce- ment Review Board, as well as to the judicial review of those proceedings, at para 36: No party takes issue with the LERB’s decision that the implied undertaking principle applied to proceedings before it, notwithstanding that those proceedings occur in an administrative context rather than in civil litigation. Nor does any party take issue with the LERB’s decision that a party to an appeal who receives a copy of the Record from the Chief before the hearing has, from the time of receipt to at least the conclusion of the appeal hearing before it, an implied undertaking not to use any of the information in the Record for a collateral purpose. 53 The Alberta Court of Appeal, however, did not agree that there was so broad an implied undertaking, acknowledging at most only an “implied quasi-undertaking of confidentiality”, at paras 38-42: While no other court has apparently yet had the occasion to consider the applicability of the principle of implied undertakings generally in the context of professional discipline proceedings, I observe that Floate v. Gas Plus Inc. P.R. Jeffrey J. 89

other administrative tribunals have held the parties to be under obligation to treat disclosed information as confidential in relation to material produced in their proceedings. For example, labour arbitrators and boards have held that parties to a grievance are bound to disclose relevant documents, and a party who receives disclosure is subject to an implied undertaking not to use it for purposes beyond the grievance in question: USWA v Shaw-Almex Industries Ltd, 1984 OLRB Rep 659 at para 18, 1984 CarswellOnt 1013; Saskatchewan v Sas- katchewan Government and General Employees’ Union (Robinson), [2007] SLAA No 15 at para 52, 164 LAC (4th) 129. That said, ... I do not accept that a true undertaking of confidentiality existed in this situation; the analogy between it and discovery produced in private litigation is imperfect at best because the rationale for an implied undertaking of confidentiality at play in civil litigation is quite different from that in the LERB context. In particular: (a) The Rules of Court which govern civil procedure require each party to make full disclosure of all relevant and material information in their hands, with no right to resist production of information which is “sensitive” or “confidential”. The quid pro quo is that the law insists that the information be used for the civil litigation in which it was produced and for nothing else. This is described as being an “implied undertaking” that the recipient of the information will not use it for a collateral purpose. It is, of course, not an undertaking at all but really a rule of law. (b) The rationale in play in the LERB context is quite different. When the complainant appeals to the LERB, the Chief must file the record and the complainant gets a copy. This follows from the principle of being entitled to know the case one has to meet. There is no reciprocal obligation on the complainant to provide any information to the Chief or to the LERB. (c) In civil litigation the implied undertaking arises because the party who makes disclosure has a direct interest in keeping its contents confidential. Here the Chief makes the disclosure by way of the Record to meet the obligations imposed by the Police Act, but otherwise has no personal interest in keeping its contents confidential. Rather, at best, the Chief is a surro- gate rights holder on behalf of all the people who, although not parties to the matter under appeal to the LERB, have private information contained in the Record. The issue here is “transparency” of public law proceedings, not the balancing of the rights of two private parties engaged in litigation. 90 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

(d) In any event, once a decision of the LERB is appealed to the Court of Appeal the contents of the Record will become accessible to the public, as it is required to be filed as part of the documents supporting the appeal. There is no situation in which information disclosed in civil litigation which is not entered as an exhibit at trial will later become accessible to the public. A closer, but also imperfect analogy is to “Stinchcombe” disclosure. In the criminal and quasi-criminal context, an accused is entitled to have disclosure under the Stinchcombe principles established by the Supreme Court of Canada in R v Stinchcome, [1991] 3 SCR 326, 120 AR 161. That is a constitutionally protected right, designed to enable full answer and defence. An accused has a right to receive this information, but has no corresponding obligation to provide information. An issue may arise as to whether the disclosure can only be used to defend the charges which are the subject of the proceeding in which it originates, or may be used by an accused for any purpose. In this sense there is a superficial similarity to the “implied undertaking” considered here, but arguably absent the constitutional imprimatur at- taching to Stinchcombe disclosure. The issue might better be framed through an application for a publication ban, arising from a determination of whether any documents contained in the Record prepared by the Chief pursuant to the obligations imposed under s 20 of the Police Act may be used by a complainant for any purpose, and whether that information becomes available for any use under the open courts principle once introduced in any LERB hearing, rather than under the label of “implied undertaking of confidentiality”. As that issue was not raised nor argued in this appeal, it must be left for another day, but I have nonetheless chosen to describe it as an “implied quasi-undertaking of confidentiality” hereafter to maintain awareness of this distinction. For these reasons I accept that Mr. Engel was bound by an implied quasi-undertaking of confidentiality which precluded him from using information contained in the Record as evidence to support a separate discipline complaint without specific permission from the LERB or a court order. 54 In P. (D.) v. Wagg, the plaintiff was a former patient of the defendant obstetrician and alleged the defendant sexually assaulted her in the course of a gynecological exam. The plaintiff reported the incident to police, who investigated and charged Dr Wagg criminally. The charges were permanently stayed for delay of prosecution. In the subsequent civil claim, the plaintiff wanted access to the records the crown provided to Dr Floate v. Gas Plus Inc. P.R. Jeffrey J. 91

Wagg and, in particular, Dr Wagg’s statements to the police. The statements had been excluded from the criminal trial under s 24(2) of the Charter, because the trial judge concluded the police had violated Dr Wagg’s section 10(b) right to counsel. But Dr Wagg had the statements in his possession since the crown prosecutor disclosed records to him so he could make full answer and defence. 55 The Divisional Court held that a “screening process” had to be followed before disclosing the records received from the crown and, in any event, held that Dr Wagg was not required to disclose the statements. It reasoned that the administration of justice would be brought into disrepute if the defendant had to disclose the statements he gave to the police after they were procured in breach of his Charter rights. The Court of Appeal affirmed the screening process but overturned on the statements, concluding their disclosure would not bring the administration of justice into disrepute. 56 The screening process required the following, at para 17 of Wagg: • the party in possession or control of the Crown brief must disclose its existence in the party’s affidavit of documents and describe in general terms the nature of its contents; • the party should object to produce the documents in the Crown brief until the appropriate state authorities have been notified, namely the Attorney General and the relevant police service, and either those agencies and the parties have consented to production, or on notice to the Attorney General and the police service and the parties, the Superior Court of Justice has determined whether any or all of the contents should be produced; • the judge hearing the motion for production will consider whether some of the documents are subject to privilege or public interest immunity and generally whether “there is a prevailing social value and public interest in non-disclosure in the particular case that overrides the public interest in promoting the administration of justice through full access of litigants to relevant information. 57 I take the references to “Crown brief” in Wagg to be the same as what the parties in this case refer to, and I refer to herein, as the “Stinchcombe Disclosure”. I also presume the Stinchcombe Disclosure to be a subset of ESRD’s Offence Investigation Records. It is highly probable that ESRD’s investigator acquired additional records that ESRD considers material and relevant to the issues in these civil actions, beyond those the Crown was required to disclose to the accused as part of its Stinchcombe 92 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

Disclosure, given the differences in issues between the two sets of proceedings. 58 Though the investigating authorities were not a party in the subsequent civil lawsuit by P(D) against Dr Wagg, as they are in this case, the Court nevertheless addressed that possibility, at paras 82-84 and 86: The Chiefs of the Toronto and Halton Region Police Services inter- vened in this appeal principally to put forward the position that the screening mechanism should not apply to a police force when it is required to defend itself against a civil action, such as an action for malicious prosecution. Apparently, the Attorney General has taken the position that the police service requires the consent of the Attor- ney General to use the contents of the Crown brief. I agree with the Chiefs that the screening process developed by the Divisional Court in this case does not apply to the original materials that ultimately find their way into the Crown brief. This case concerns the use of materials disclosed to the accused as part of the constitutionally mandated disclosure process. Those materials will contain copies of various kinds of documents such as officers’ notes, witness statements, potential exhibits, and other materials such as copies of videotapes and photographs. The originals remain with the police, although some may be entered as exhibits. The Crown brief may also contain copies of notes or other material produced by Crown counsel. Again, the originals would remain with Crown counsel, or perhaps would be left with the police for safekeeping. I can see nothing in the decision of the Divisional Court that was intended to circumscribe the use that a police service may make of its own documents and other materials merely because copies of those materials found their way into the Crown brief and were disclosed to the defence. This material is essential to permit the police service to defend itself against lawsuits arising out of their investigations. ... To conclude, in actions against the police the screening process discussed in this case does not apply to the original materials prepared by the police during their investigation. The police would only require the consent of the Attorney General in respect of the use of materials created by Crown counsel. 59 The Court in Wagg also recognized that records at issue in some cases may contain information over which third party interests may be affected, at paras 46 and 50: There are important policy reasons for recognizing an implied undertaking rule with respect to disclosure of materials to the defence in a Floate v. Gas Plus Inc. P.R. Jeffrey J. 93

criminal case. The disclosure is compulsory and required because of the public interest in ensuring that the accused obtains a fair trial of the criminal charges. However, as a result of the criminal disclosure process, individuals, including innocent third parties, may find that highly personal information is made available to the accused. These individuals must, as explained in Taylor, accept this intrusion in the interests of achieving a proper result in the criminal case, but the law should provide them with some reasonable protection against use of the information for entirely different purposes. In addition to the policy reasons referred to in Taylor, which essentially concern privacy interests of third parties, there are the policy reasons identified by the Divisional Court in this case, namely the fact that the disclosure may contain documents over which the Crown could claim public interest immunity, that might attract privilege or which broadly speaking it is not in the public interest to produce. ... Admittedly, the screening mechanism devised by the Divisional Court is not a perfect solution. The obligation to notify the Crown and the police may not fully protect the privacy interests of third parties. Those third parties will be dependent upon the Crown or police protecting their interests or notifying them so that they can protect their own interests. I am also, naturally, concerned about costs to the parties by potentially having to litigate one more motion. There is also the cost to the system because of the need to resort to scarce judicial resources. The affidavit filed on behalf of the Attorney Gen- eral in this case speaks to the increasing number of requests for access to Crown briefs for use in civil proceedings. However, I see no reasonable alternative. 60 The Alberta Court of Appeal in Edmonton Police Service also recognized that third party interests may be affected by a party disclosing records. It stated (repeating para 39(c) therefrom): “...the Chief is a sur- rogate rights holder on behalf of all the people who, although not parties to the matter under appeal to the LERB, have private information contained in the Record.” 61 In Bennett v. State Farm Fire and Casualty Co., 2013 NBCA 4 (N.B. C.A.), the plaintiff argued that documents produced by the RMCP in its investigation should not be used for “parasitic or collateral” purposes in subsequent civil litigation. She submitted that neither the police nor the Crown should be co-opted into private proceedings between parties be- 94 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

cause it is not a role they were created to fulfill. The court rejected her arguments, at para 52: ...“the search for the truth is at the heart of justice according to law.” No compelling argument has been made in support of an overriding public policy reason to shelter relevant documents from disclosure and production in a civil matter simply because these originated or were gathered in the course of a police investigation. If the documents are not otherwise cloaked by privilege or immunity, and if they are relevant and shed light on the truth, the interests of justice are served by their disclosure, not by their suppression. 62 The court concluded the documents were in the plaintiff’s possession, they related to the matters in issue in the action, and she had no claim of privilege or immunity over them. The documents had been screened through the mechanisms provided in New Brunswick’s Privacy Act and Access to Information Act such that any claim of privilege, immunity or privacy interest had opportunity to be determined. Therefore there was no reason to impede the truth finding process by limiting disclosure. 63 Similarly, in Harbour v. Bangs, [2002] O.J. No. 4148 (Ont. C.J.), the mother in a custody dispute sought disclosure of the Crown brief from the criminal proceedings against the father, along with disclosure of the Child and Family Services’ abuse investigation file. The judge ordered disclosure of both stating, at para 9, that “[t]he use of material, such as the Crown brief, in civil cases does not constitute an ulterior or collateral use of the material.” That decision was driven by the paramountcy of the best interests of the child doctrine and therefore is less persuasive for present purposes. 64 In Consolidated NBS Inc. v. Price Waterhouse Ltd. (1994), 111 D.L.R. (4th) 656 (Ont. Div. Ct.), Howe, a third party to the action, had previously been the subject of a hearing before the Securities Commis- sion, arising from the same underlying facts as in the civil action (he had also been charged criminally). 65 The defendant in the civil action, Price Waterhouse, sought production of the Crown’s disclosure to Howe. It also sought disclosure of all documents in Howe’s possession arising from the Securities Commission investigation. The court ordered disclosure of the Crown’s records, stating, at paras 7 and 8: While there is an implied undertaking that a party to whom documents are produced will not use them for a collateral or ulterior purpose, that principle has no application here. Howe is not seeking to use the Crown productions against the Crown; a third party is seek- Floate v. Gas Plus Inc. P.R. Jeffrey J. 95

ing production of the documents from him. It is argued that to produce these documents amounts to self-incrimination. The same may be said of any production from corporate records or the like which a litigant might be compelled to produce. There is no principle against self-incrimination in a civil proceeding. The pendulum swings in the opposite direction. A litigant is under a compulsion to submit to oral discovery and obliged to seek out relevant documents for an affidavit on production. 66 The court also ordered disclosure of the documents in the hands of the Securities Commission, subject to the limitations set out in the Secur- ities Act. The transcript of an interview between the third party Howe and RCMP officers was not producible however, since the court found there was a promise of confidentiality sufficient to create a situational privilege under the four Wigmore factors. 67 In Hacock v. Vallaincourt (1989), 40 B.C.L.R. (2d) 83 (B.C. C.A.), the plaintiffs sued the defendant, their municipal co-worker, for allegedly libellous statements he had made to city officials in the course of an in- ternal investigation into the plaintiffs’ conduct as city employees. In making his statement to the investigators, the defendant was told the information would be treated in confidence and used for personnel purposes only; however, his comments were put into a written statement that was shown to the mayor and city manager. The mayor had extensive powers under the Municipal Act to investigate and sanction employees — powers to control, supervise, punish, and prosecute officers and employees. The plaintiffs sought a copy of the statement for use in the libel action. 68 The court ordered disclosure of the statement, even though the statement was made in confidence. The court held that the police informer rule had no application to the type of investigation carried out by officers of the municipality:5 at para 23. The court also held that the information was not protected on any other public policy grounds: at para 27. The circumstances of confidentiality were not enough to satisfy the Wigmore

5 Informer privilege is restricted to non-disclosure of the identity of the informant or anything that might compromise the safety of the informant. It does not affect the content of the information disclosed. The privilege is regarded as play- ing a vital role in law enforcement: Canada (Solicitor General) v. Ontario (Royal Commission of Inquiry into Confidentiality of Health Records), [1981] 2 S.C.R. 494 (S.C.C.). 96 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

requirements for privilege. The public interest in their disclosure outweighed any privacy or confidentiality interest. 69 In Merrill Lynch, Royal Securities Ltd./Lt´ee v. Granove, [1985] 5 W.W.R. 589 (Man. C.A.), Granove complained to the Securities Com- mission about Merrill Lynch’s conduct in relation to his account. In the course of its investigation, the Securities Commission interviewed many Merrill Lynch employees and Merrill Lynch produced records for review, in response to the Commission’s requests. Merrill Lynch assumed the documents were for the confidential use of the investigation only. Later Granove sought disclosure in his civil action of the statements made by Merrill Lynch in the investigation. 70 The court ordered disclosure, concluding that even if the interviews were done in an environment of confidence refusing production would not be in accordance with the public interest in the proper administration of justice: at para 20. The court rejected the proposition that unless confidentiality was maintained, future investigations and the investigative process generally would be ineffective. 71 In Jacques, the Supreme Court of Canada considered whether a party to a civil proceeding can request the disclosure of recordings of private communications intercepted by the state in the course of a criminal investigation. The court found there was no immunity from disclosure provided by the Competition Act or the Criminal Code. The court rejected Imperial Oil’s argument that its status as an innocent third party whose communications were intercepted prohibited disclosure of the recordings. 72 While it is important to consider the impact of disclosure on the rights of innocent third parties, the court noted that the right to privacy is not absolute and the search for truth must prevail, at para 83: A judge laying down conditions for the disclosure of private documents must consider and weigh the various interests involved. On the one hand, the judge must limit the potential for invasion of privacy and, on the other, he or she must avoid unduly limiting access to relevant documents so as to ensure that the proceedings remain fair, the search for truth is not obstructed and the proceedings are not un- justifiably delayed. 73 The Supreme Court held that the lower court judge had properly exercised her inherent jurisdiction to control the disclosure process and set conditions for and limits on disclosure: at para 82. She ordered that the requested recordings be disclosed solely to the lawyers and experts par- ticipating in the civil proceedings and that they screen the recordings to Floate v. Gas Plus Inc. P.R. Jeffrey J. 97

protect the privacy of third parties having nothing to do with the proceedings. The Supreme Court held this order was sufficiently limited in scope to protect the right to privacy of all those whose communications were intercepted and ensured that disclosure of the information would not hin- der the efficient conduct of the criminal proceedings or violate the right to a fair trial of the defendants still facing criminal charges.

Analysis 74 The records that are already in the public domain, such as those on the public record of the earlier court and AEAB processes, are not subject to an implied undertaking: Edmonton (Police Service) at para 43. 75 The records that are not already in the public domain include some that the Regulators did not receive from another party, such as those the Regulators created themselves or perhaps the Crown created. These records are not subject to an implied undertaking and the Respondents do not suggest otherwise. They argue the implied undertaking applies to the records the Regulators received from others because those who supplied the information were compelled in some way to do so, just like a civil litigant receives records from a party opposite under compulsion of law. Therefore, even if the Responents were correct in that argument, it would not affect the records generated by the Regulators themselves, or by the Crown in the course of prosecuting the alleged offences. 76 I conclude that the remainder of the Records in the possession of the Regulators, both the Offence Investigation Records and the Regulatory Activities Records at the heart of the dispute between the Applicants and Respondents, are not subject to any implied undertaking, for the following reasons. 77 First, legislators not the courts control the Regulators’ process and there is no statutory, regulatory or ‘Regulator-specific’ practice that imposes an undertaking here. 78 The Regulators are statutory creations; the legislature determines the powers the Regulators require to achieve their statutory mandates. The court is not the master of those regulatory processes in the same way it controls the civil litigation process. The court does not have a compara- ble responsibility to enhance the effectiveness of those regulatory processes, to accord the Regulators additional tools to achieve their statutory purposes. That is the proper domain of the legislators. The court is independent of such matters and must remain so. The court only super- 98 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

vises regulatory decision-making processes, upon application for judicial review or appeal, to ensure their legality and procedural fairness. 79 At common law, the implied undertaking is an undertaking to the court: Doucette at para 27. I do not consider regulatory investigators or other regulatory agents and employees to owe the court an undertaking of confidentiality over all the information they receive from others — nor should they. It is not the court’s place to impose or imply such an undertaking, so that the effectiveness of the various regulatory processes might be improved. It would improperly import the civil litigation duty into an entirely different context. 80 When legislators have wanted to, they have used a range of measures to ensure regulatory bodies receive full information and disclosure. They have granted whistleblower protection to individuals who supply information to a particular regulator.6 They have permitted regulators to grant immunity from enforcement to a polluter who self-reports and cooperates with the regulator to rectify the problem and remediate its effects.7 Leg- islators sometimes make obstruction an offence and grant powers to search and seize. In addition, they may provide expressly for confidentiality of a record of investigation, as the court noted in Jacques, pursuant to section 29 of the Competition Act. Similarly, in Consolidated NBS Inc, disclosure was ordered subject to the limitations set out in the Ontario Securities Act. Legislators also may dictate the desired degree of transparency or protection of private information in freedom of information and protection of privacy legislation. 81 In this case, there is nothing in the Regulators’ empowering legislation that expressly provides for confidentiality from disclosure in civil

6 See, for example, the Public Interest Disclosure (Whistleblower Protection) Regulation, Alta Reg 71/2013 and the Competition Act, RSC 1985, c C-34, s 66.1. 7 See, for example, the Nova Scotia Environment Act, SNS 1994-95, c 1, s 70 and Environmental Protection Act (Nunavut), RSNWT 1988, c E-7. The Ontario Environmental Protection Act, RSO 1990, C E19, ss 10 & 186 provides somewhat similar immunity in theory, but appears not to be used in practice: Com- mission for Environmental Cooperation’s Law and Enforcement Cooperation Program, Voluntary Measures to Ensure Environmental Compliance: A Review and Analysis of North American Initiatives, (Montreal: Commission for Envi- ronmental Cooperation, 1998). Alberta, by contrast, has opted to impose penalties when non-compliance is not reported and information is not supplied. Floate v. Gas Plus Inc. P.R. Jeffrey J. 99

litigation. There is no limiting provision in the EPEA similar to that found in the Ontario Securities Act. Rather, the EPEA mandates the public disclosure of a variety of records in section 35 of the Act (and the associated Disclosure of Information Regulation, Alta Reg 273/2004), except those records that provide information relating to a matter that “is the subject of” an investigation or proceeding [s. 35(9)]. That exception no longer applies here. Section 35 also establishes a process to request confidentiality of certain types of records. 82 These provisions of the EPEA accord with the Freedom of Informa- tion and Protection of Privacy Act, RSA 2000, c F-25 (“FOIPP”) which applies to all regulatory bodies and generally prohibits the disclosure of personal information (broadly defined) collected in the course of a regulatory investigation. There is an exception, however, permitting disclosure in litigation. Section 3(c) and (d) state that the Act does not apply to limit the information otherwise available by law to a party to legal proceedings and it does not affect the power of the court to compel the production of documents. Furthermore, section 40(1) of FOIPP provides that a public body may disclose personal information for the purpose of com- plying with a rule of court that relates to the production of information and for use in judicial proceedings. In other words, the legislature has decided that personal information collected from third parties by a public body pursuant to an investigative mandate should be available in civil proceedings, subject to any privilege or immunity prohibiting disclosure. 83 Regulators also enjoy varying degrees of discretion in charting their own practices and processes to accomplish their mandates. Therefore, a regulator may have been delegated the power to imply the undertaking, and may in fact choose to do so. Quasi-judicial regulators would be more likely to do so, as masters of their own adversarial processes that usually involve some form of pre-hearing discovery. 84 In this case, there is no evidence of any such practice. There is also no evidence of any specific promise or assurance of confidentiality having been extended to any of the suppliers of information, either by the investigative or the regulatory agents receiving the information. 85 The existence of any such express statutory protection or regulator- specific practice is not dispositive of the issue of disclosure in subsequent civil litigation, but its presence or absence will be given considerable weight in the court’s exercise of discretion on that question, as the court controls its own process and ensures fairness in each specific proceeding. If, however, after considering the question of the litigants’ ac- 100 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

cess to information in the possession of a regulator, the court does order certain information to remain confidential, it will not be the result of any implied undertaking to the court. When the Regulators received the Records in dispute they were not receiving them as part of a civil litigation process, controlled by the court, but as part of an administrative process, that answers to the legislators. 86 In Wagg, at para 30, the Ontario Court of Appeal referred to the general principle discussed in Goodman v. Rossi (1995), 24 O.R. (3d) 359 (Ont. C.A.) and Lindsey v. Le Sueur (1913), 29 O.L.R. 648 (Ont. C.A.): ... because a party had been “given access to and the use of the documents for a particular purpose ... there is necessarily an implication that they are not to be used for any other purpose”. 87 I agree, but hasten to point out that it is not the same as implying the existence of an undertaking to the court for every record anyone ever provides to anyone else. The implication spoken of above is an expectation on the part of a supplier of information provided for one purpose, that it will not be used by the recipient for any other purpose. But it does not create an undertaking to the court on the part of the recipient to abide by that expectation. It is an expectation as between the supplier and recipient. If the exchange did not occur as part of a court process, no undertaking to the court as to future use of the information is implied. 88 The expectation as between supplier and recipient, I would suggest, obliges the recipient to at least notify the supplier of any competing obligation the recipient later faces to disclose the information, for example because the recipient is now party to civil litigation. In this way the supplier has opportunity to act to protect its privacy interests if it wishes. 89 This is what occurred in Husky Oil. The only difference there was that the expectation of confidentiality was not implied but expressly stated, in a contract. Husky and Anadarko were parties to a contract for service on Husky’s pipeline that contained pricing and tariff information that Husky considered to be sensitive to its business. The contract required Anadarko to keep the information confidential. Anadarko later was in a civil suit with Gibson Petroleum Company Limited, a pipeline operator that competed with Husky. Anadarko considered Husky’s com- mercially confidential information relevant and material to the issues in that litigation and therefore believed it was compelled to produce the Husky information. Anadarko notified Husky. Upon receiving notice that its sensitive information might have to be revealed to its competitor, Husky applied for a court order preventing Anadarko from disclosing it Floate v. Gas Plus Inc. P.R. Jeffrey J. 101

to Gibson in the litigation. The Alberta Court of Appeal remitted the matter to Queen’s Bench to apply the Wigmore test to decide the issue, but took no issue with how the matter originated. It originated just as Counsel’s Obligations require when there is uncertainty over whether otherwise producible information is privileged, regardless of any con- tractual obligation of confidentiality: notice and reference to the court. 90 Second, the burden of the implied undertaking proposed by the Re- spondents far outweighs any benefit. The approach of the Respondents would have the effect of preventing regulators from ever disclosing any of the information they received from a third party without an order of a court. Everything a regulator received from a third party would have to be kept confidential just in case it would later be relevant and material to civil litigation. The overwhelming majority of information communi- cated to regulators will never be relevant and material to any civil proceeding; regulators should not be so encumbered by requiring a release from the undertaking (by application to the court) before any and all other uses they may want to (or be required by statute to) make of all the information they gather. This also underscores my first reason. Implying the undertaking could undermine legislative purposes for a regulator and represent the court’s inappropriate intrusion upon, if not usurpation of, the legislators’ jurisdiction. 91 Imposing the implied undertaking would create nominal additional work for a regulator in civil litigation assembling and listing its records, but considerable additional work would be required of all other litigants. They would face such tasks as pursuing sufficient understanding of each record listed as being subject to the undertaking, to assess whether to apply to court to lift the undertaking for every such record and then, if considered warranted, proceeding with the application(s). Such a sub- stantial increase in interlocutory litigation is not justified. Further, the added demands that would impose upon already over-burdened judicial and curial resources militate strongly against the efficacy of such an ex- pansion of scope to the implied undertaking. 92 Third, the Respondents’ approach would have the effect of reversing the presumptive discoverability of all relevant and material information in the civil litigation process, unless privileged, to a presumptive exclusion of information, unless a litigant can persuade a court to lift the undertaking for specific records whenever a regulator is one of the litigants. In this case that would apply to an extremely large portion of the total number of records identified by all parties. 102 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

93 The civil litigation process currently enables parties to litigate most disputes from the time a new claim is served right through to settlement or commencement of trial, without ever having to engage the court in any significant way. This ability would be eroded for all claims where a regulator is a party, and potentially, extrapolating the Respondents’ reasoning, for any claim simply involving a party receiving information under some form of compulsion. Examples might be information provided by an employee to an employer and information exchanged as a precondition to a contract. Resort to the courts prior to trial should be the exception rather than the rule. 94 Fourth, the prospects of a just decision improve with greater access to relevant and material information, not less. As the court said in Wagg, at para 53: Society has an interest in seeing that justice is done in civil cases as well as criminal cases, and generally speaking that will occur when the parties have the opportunity to put all relevant evidence before the court. 95 Earlier in Wagg, at para 38, the court quoted from Fullowka v. Royal Oak Mines Inc., [1998] N.W.T.R. 42 (N.W.T. S.C.), which in turn quoted passages from R. v. Stinchcombe, [1991] 3 S.C.R. 326 (S.C.C.): ...the “fruits of the investigation” in the possession of the Crown “are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done” ...the predominant purpose being the furtherance of the public interest in the pursuit of justice. 96 The same is true here, as found by the New Brunswick Court of Ap- peal in Bennett, at para 52 quoted above. That is, no compelling argument has been made to shelter relevant documents from disclosure and production in a civil matter simply because they originated or were gathered in the course of a police investigation. If the documents are relevant and if they are not otherwise cloaked by privilege or immunity, they should be disclosed, not suppressed. 97 Fifth, I am satisfied that the implied undertaking is not necessary to ensure that any third parties, whose privacy or confidentiality interests might be affected by disclosure of information, are given an opportunity to assert those interests before disclosure or production of the records. Counsel’s Obligations are sufficient for that purpose. The court assumes counsel have fulfilled those obligations, until given cause to believe otherwise. Floate v. Gas Plus Inc. P.R. Jeffrey J. 103

98 The court has added assurance in this case at least in respect of the Offence Investigation Records, since the evidence is that ESRD notified all those people and companies from whom it received information. Also, all parties to these various law suits were notified of these Applica- tions by service upon their counsel. 99 None have responded to assert any privacy interest or desire for confidentiality over their records. The Respondents indicated in oral argument that they “likely” have no reason to object to disclosure of the records if none of those other persons or parties asserts an interest in keeping them confidential. Neither is there any evidence of any promises or assurances of confidentiality having been extended to the suppliers of information, by the investigator or the regulatory agents. 100 Sixth, some of the Regulators’ functions involve decisions affecting private interests. Such decisions are all subject to curial review: Crevier v. Quebec (Attorney General), [1981] 2 S.C.R. 220 (S.C.C.). At such time, the regulatory records of that decision maker are delivered up to the reviewing court and placed on the public record. 101 The Respondents argue that the implied undertaking will ensure the effectiveness of future investigations. Like the Manitoba Court of Appeal in Granove, above, I disagree. If that were true, the Regulators and their legislative creators would put in place mechanisms to protect confidentiality of information and its sources. 102 The Respondents argue for a screening process akin to the one established in Wagg. Wagg dealt with whether the accused, having received the Crown’s disclosure in the course of the earlier criminal prosecution, held those records subject to the implied undertaking. The most direct parallel in this case is the Stinchcombe Disclosure provided to Gas Plus in the course of the quasi-criminal regulatory prosecutions and the applications in the alternative that the Gas Plus Defendants be ordered to produce that disclosure in these subsequent civil actions. Therefore, if the approach taken in Wagg of establishing a screening mechanism had any direct application in this case, it would be upon the Stinchcombe Disclo- sure in the hands of the Gas Plus Defendants. The Respondents have not suggested anything of the sort with respect to the Stinchcombe Disclo- sure. In fairness, though, perhaps they might in the event they recover those records from their estranged defence counsel. 103 The Respondents argue that absent the implied undertaking, the Reg- ulators or others like them could use their powers to compel information for ulterior purposes — to advantage their position in civil litigation 104 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

under the guise of continuing a regulatory investigation or activity. In this case, the Respondents may have been understandably guarded if, after being sued civilly, one or both of the Regulators compelled information from them, or from some other party, by using their statutory authority rather than the civil process rules to aid their civil litigation position. 104 I agree that implying an undertaking might deter such conduct, but it is insufficient reason for the court to venture into the legislative domain. It does not trump my reasons for not implying the undertaking. In my view, other mechanisms exist to deter such conduct. There is a remedy in tort, for example, for abuse of process, and evidence may be inadmissible at trial because of the manner of its acquisition, to name but two. If after reviewing the Records the Respondents consider some of them to have been improperly procured, they may apply for appropriate relief. 105 If I am incorrect in concluding that the implied undertaking does not apply to the Records, then the Applicants ask me to lift that undertaking. Even if the implied undertaking applies, it is subject to the power of the court to override, in the control of its own process and to administer justice in the unique context of each individual case. 106 The test for whether to lift the implied undertaking was summarized by Wittmann, CJQB, in Secure Energy Services Inc. v. CCS Corp., 2014 ABQB 107 (Alta. Q.B.) at paras 12 & 13. The applicant must present cogent and persuasive reasons that the relief should be granted; the information sought must be relevant and material; and, to grant the relief the court must conclude that the public interest in seeing justice done in the particular case outweighs the privacy interest of the litigants involved in the other litigation and the integrity of the discovery process. Other relevant considerations regarding whether the implied undertaking should be lifted include the presence of fraud or criminal wrongdoing, whether the information could have been obtained from other sources, whether third parties are involved, and whether the new proceedings are connected with the proceedings in which disclosure was made, in the sense that they involve the same or similar parties, the same or similar issues, and arise out of the same series of events. Lastly, there is a heavy burden on the applicant, which arises out of the compelling rationale underlying the implied undertaking. 107 Even if the implied undertaking applied to the Offence Investigation Records and the Regulatory Activities Records, I would relieve the Reg- ulators from its requirements. The information sought is highly relevant and material since it relates to the same Release that is the focus of the Floate v. Gas Plus Inc. P.R. Jeffrey J. 105

homeowner actions. In the absence of these records, the parties and the court will be significantly impaired from, if not prevented from, justly determining those claims. 108 Furthermore, the Records provide information about the Gas Plus De- fendants’ and ESRD’s response to the Release, which are key issues in the homeowner actions. The Regulators are sued, in part, for alleged negligence in the discharge of their statutory roles. Therefore, the records in their possession that provide evidence of what information they received and when, from which might be inferred their then state of mind, will inform the legality of what they did or failed to do at various times. The public interest in seeing justice done in this case outweighs any private interest the parties may have in the materials, particularly since the Records were not obtained pursuant to the civil discovery process. 109 The Regulators ask, in the further alternative, that I order the Gas Plus Defendants to produce the Stinchcombe Disclosure they received from the Crown. The Gas Plus Defendants are opposed because they say they no longer have possession of the Stinchcombe Disclosure. 110 A party to a civil proceeding who has received documents from the Crown during related criminal proceedings, which are relevant and material to an issue in the civil proceeding, is obliged to disclose the existence of those documents in their affidavit of records: Jackson v. A. (D.), 2005 ABQB 824 (Alta. Q.B.) at para 28. Gas Plus and HNTL have not demonstrated that the records are not within their power to produce. In general, if documents are in the custody of a party’s counsel, then the party is deemed to have them in its possession: Jackson at para 2. 111 Gas Plus and HNTL explained at the hearing of these Applications why they say they are unable to produce those records, but they had no evidence to that effect that the Applicants could test or respond to and that the Court could assess. Nothing is presented, for example, in description of the extent of the efforts they made to procure those records from their prior counsel. In the circumstances they have not satisfied me that they cannot produce the Stinchcombe Disclosure. That may be of reduced practical consequence if all the same records are within the Ap- plicants’ Records, but based on the current evidentiary record Gas Plus and HNTL remain obliged to produce those records.

Conclusions 112 For all of the above reasons, the answers to the issues raised by these Applications are: 106 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

a. The Regulatory Activities Records are not subject to an implied undertaking. b. The Offence Investigation Records are not subject to an implied undertaking. c. If any implied undertaking does exist, it is hereby lifted. d. In any event, the Gas Plus Defendants must do more towards producing the Stinchcombe Disclosure or to satisfy the court of their inability to do so. 113 The parties receiving those records within the context of the current litigation of course will be subject to the implied undertaking. Any potential privilege or public interest immunity applicable to an individual record is not affected by this decision.

Costs 114 If the parties cannot agree on costs they may return in a future case management meeting to arrange a hearing date, provided they do so without undue delay. Application granted. Baker v. Sherwood No. 159 (Rural Municipality) 107

[Indexed as: Baker v. Sherwood No. 159 (Rural Municipality)] Richard Albert Baker, Dean Beatty, Brian Gary Brown, John David Duncan, Robert Andrew Dunlop, James Paul Farley, Allan Wayne Ganshorn, Gary Ross Howland, Roy William Klym, Herbert Stanley Martin, John Richard Mcallister, Joan Ann Pratchler, James Douglas Tanner, Applicants and Rural Municipality of Sherwood No. 159, Respondent Saskatchewan Court of Queen’s Bench Docket: Regina QBG 903/15 2015 SKQB 301 E.J. Gunn J. Judgment: September 23, 2015 Municipal law –––– Attacks on by-laws and resolutions — Grounds — Ultra vires — Beyond power of municipality — Miscellaneous –––– Municipality was subject of inspection pursuant to s. 396 of Municipalities Act, and order for inquiry was issued — Council passed by-law to provide for indemnity and defence of council members against liability incurred while acting on behalf of municipality — Applicants were residents and claimed that by-law served private interests of councillors subpoenaed to testify at inquiry — Residents brought application for order quashing by-law — Application granted — Re- sidents had standing to challenge by-law — Conduct of municipality was subject to judicial review and court had jurisdiction — Applicable standard of review was correctness — Municipality cited s. 355(3) of Act as authority to enact by-law, however by-law was far more expansive than circumstances contemplated by s. 355(3) of Act — Act limited circumstances to actions in which liability was claimed against member of council for acts or omissions done or made in good faith in course of duties — Potential liability for ratepayers was much greater if by-law was found to be intra vires than it would be on interpretation of s. 355(3) — Taking purposive approach to interpretation of Act and terms of by-law, by-law was ultra vires — Council exceeded authority in purporting to provide indemnification for councillors in circumstances where they were not subject to claim for liability — By-law was not authorized under s. 82 of Act — By-law was not authorized under s. 8 of Act, as by-law was not passed to promote peace, order and good government of municipality but was passed to protect interests of members of council on personal basis. 108 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

Cases considered by E.J. Gunn J.: British Columbia Lottery Corp. v. Vancouver (City) (1999), 169 D.L.R. (4th) 141, 118 B.C.A.C. 129, 192 W.A.C. 129, 1999 CarswellBC 72, 1 M.P.L.R. (3d) 1, 61 B.C.L.R. (3d) 207, 1999 BCCA 18, 1 B.C.T.C. 398, [1999] B.C.J. No. 79 (B.C. C.A.) — considered Catalyst Paper Corp. v. North Cowichan (District) (2012), 2012 SCC 2, 2012 CarswellBC 17, 2012 CarswellBC 18, 11 R.P.R. (5th) 1, [2012] 2 W.W.R. 415, 26 B.C.L.R. (5th) 1, 340 D.L.R. (4th) 385, 93 M.P.L.R. (4th) 1, [2012] S.C.J. No. 2, 425 N.R. 22, 316 B.C.A.C. 1, 537 W.A.C. 1, 34 Admin. L.R. (5th) 175, [2012] 1 S.C.R. 5, [2012] A.C.S. No. 2 (S.C.C.) — considered Delta (Municipality) v. Dawson (1975), 9 L.C.R. 10, 1975 CarswellBC 328 (B.C. S.C.) — considered Duffield v. Prince Albert (City) (2015), 2015 SKCA 46, 2015 CarswellSask 227, 36 M.P.L.R. (5th) 1, 457 Sask. R. 271, 632 W.A.C. 271, 89 Admin. L.R. (5th) 290, 389 D.L.R. (4th) 191 (Sask. C.A.) — considered Goulet v. Buena Vista (Village) (2012), 408 Sask. R. 267, 2012 SKQB 503, 2012 CarswellSask 921, 11 M.P.L.R. (5th) 270, [2012] S.J. No. 764 (Sask. Q.B.) — considered Montreal (Ville) v. 2952-1366 Québec inc. (2005), 2005 SCC 62, 2005 Car- swellQue 9633, 2005 CarswellQue 9634, 201 C.C.C. (3d) 161, 32 Admin. L.R. (4th) 159, [2005] S.C.J. No. 63, 15 M.P.L.R. (4th) 1, 33 C.R. (6th) 78, (sub nom. Montreal (City) v. 2952-1366 Québec Inc.) 340 N.R. 305, 258 D.L.R. (4th) 595, 18 C.E.L.R. (3d) 1, (sub nom. Montréal (City) v. 2952- 1366 Québec Inc.) 134 C.R.R. (2d) 196, [2005] 3 S.C.R. 141, 36 C.R. (6th) 78 (S.C.C.) — considered Morrison v. Kingston (City) (1937), [1938] O.R. 21, 69 C.C.C. 251, [1937] 4 D.L.R. 740, 1937 CarswellOnt 66 (Ont. C.A.) — considered Ontario (Attorney General) v. Mississauga (City) (1981), 33 O.R. (2d) 395, 15 M.P.L.R. 212, 10 C.E.L.R. 91, 124 D.L.R. (3d) 385, 1981 CarswellOnt 1172 (Ont. C.A.) — considered R. v. Bridge (1952), [1953] 1 S.C.R. 8, 104 C.C.C. 170, [1953] 1 D.L.R. 305, 1952 CarswellOnt 117 (S.C.C.) — considered R. v. Greenbaum (1993), 14 M.P.L.R. (2d) 1, 79 C.C.C. (3d) 158, 100 D.L.R. (4th) 183, 149 N.R. 114, [1993] 1 S.C.R. 674, 19 C.R. (4th) 347, 61 O.A.C. 241, 10 Admin. L.R. (2d) 161, 1993 CarswellOnt 80, 1993 CarswellOnt 974, [1993] S.C.J. No. 24, EYB 1993-68610 (S.C.C.) — followed R. v. Joy Oil Co. (1963), [1964] 1 O.R. 119, 41 C.R. 223, [1963] 3 C.C.C. 260, 41 D.L.R. (2d) 291, 1963 CarswellOnt 17 (Ont. C.A.) — considered R. v. Sandler (1971), [1971] 3 O.R. 614, 21 D.L.R. (3d) 286, 1971 CarswellOnt 791 (Ont. C.A.) — considered R. v. Sharma (1993), 14 M.P.L.R. (2d) 35, 19 C.R. (4th) 329, 10 Admin. L.R. (2d) 196, 79 C.C.C. (3d) 142, 100 D.L.R. (4th) 167, [1993] 1 S.C.R. 650, Baker v. Sherwood No. 159 (Rural Municipality) 109

149 N.R. 161, 61 O.A.C. 161, 1993 CarswellOnt 79, 1993 CarswellOnt 973, [1993] S.C.J. No. 18, EYB 1993-67490 (S.C.C.) — considered Saskatchewan (Attorney General) v. Plante (1981), [1981] 4 W.W.R. 284, 9 Sask. R. 23, 1981 CarswellSask 128 (Sask. C.A.) — considered Shell Canada Products Ltd. v. Vancouver (City) (1994), [1994] 3 W.W.R. 609, 20 M.P.L.R. (2d) 1, 20 Admin. L.R. (2d) 202, 110 D.L.R. (4th) 1, 88 B.C.L.R. (2d) 145, [1994] 1 S.C.R. 231, 163 N.R. 81, 41 B.C.A.C. 81, 66 W.A.C. 81, 1994 CarswellBC 115, 1994 CarswellBC 1234, [1994] S.C.J. No. 15, EYB 1994-67078 (S.C.C.) — referred to United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City) (2004), 2004 SCC 19, 2004 CarswellAlta 355, 2004 CarswellAlta 356, 46 M.P.L.R. (3d) 1, 236 D.L.R. (4th) 385, 318 N.R. 170, 18 R.P.R. (4th) 1, [2004] S.C.J. No. 19, 50 M.V.R. (4th) 1, 26 Alta. L.R. (4th) 1, 12 Admin. L.R. (4th) 1, [2004] 7 W.W.R. 603, 346 A.R. 4, 320 W.A.C. 4, [2004] 1 S.C.R. 485, REJB 2004-55539, [2004] A.C.S. No. 19, 2004 CSC 19 (S.C.C.) — followed Vic Restaurant Inc. v. Montreal (City) (1958), [1959] S.C.R. 58, 17 D.L.R. (2d) 81, 1958 CarswellQue 49, [1958] S.C.J. No. 69 (S.C.C.) — considered 114957 Canada Ltée (Spray-Tech, Société d’arrosage) c. Hudson (Ville) (2001), 2001 SCC 40, 2001 CarswellQue 1268, 2001 CarswellQue 1269, (sub nom. 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town)) 200 D.L.R. (4th) 419, 19 M.P.L.R. (3d) 1, 271 N.R. 201, [2001] S.C.J. No. 42, 40 C.E.L.R. (N.S.) 1, (sub nom. 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town)) [2001] 2 S.C.R. 241, REJB 2001-24833, 2001 CSC 40 (S.C.C.) — considered Statutes considered: Municipalities Act, S.S. 2005, c. M-36.1 Generally — referred to s. 8 — considered s. 8(1)(a) — considered s. 11 — considered s. 82 — considered s. 92 — considered s. 92(d) — considered s. 92(f) — considered s. 111 — considered s. 111(2)(j) — considered s. 127(o) — considered s. 143(2)(d) — considered s. 151 — considered s. 159 — considered s. 192(1) — considered s. 355 — considered 110 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

s. 355(1)-355(3) — considered s. 355(3) — considered s. 356 — considered s. 358 — considered s. 358(1) — considered s. 396 — considered s. 397 — considered

APPLICATION by residents for order quashing by-law purporting to indemnify municipal officials.

J. Paul Malone, for Applicants Karen M.T. Prisciak, Q.C., for Respondents

E.J. Gunn J.:

1 The applicants, Richard Albert Baker, Dean Beatty, Brian Gary Brown, John David Duncan, James Paul Farley, Allan Wayne Ganshorn, Gary Ross Howland, Roy William Klym, Herbert Stanley Martin, John Richard McAllister, Joan Ann Pratchler and James Douglas Tanner are voters and own property in the Rural Municipality of Sherwood No. 159 [RM]. The applicant, Robert Andrew Dunlop, is a voter in the RM and the corporation, of which he is the Chief Executive Officer, owns land in the RM. The applicants challenge the validity of a bylaw passed by the Council of the RM on October 18, 2014, No. 17/14 [Bylaw]. They seek an order quashing the Bylaw pursuant to s. 358 of The Municipalities Act, SS 2005, c M-36.1 [Act].

The Context 2 The information referenced here has been obtained from the evidence filed by the parties and from their briefs of law and submissions to the court. They do not disagree in any fundamental way with this summary of events. Baker v. Sherwood No. 159 (Rural Municipality) E.J. Gunn J. 111

3 The RM was the subject of an Inspection pursuant to s. 396 of the Act ordered June 16, 2014 by the Minister of Government Relations [Min- ister]. The Terms of Reference provided in part the following (p. 2): Terms of Reference 1. The Inspector will inspect the following matters connected with the management, administration or operation of the Ru- ral Municipality of Sherwood No. 159 (“the municipality”): (a) the full history, background, process, facts and circumstances which led to the approval by the Council of the municipality (the “Council”) of the amendments to the official community plan and zoning bylaws and subsequent concept plan(s) for the proposed Wascana Village development; (b) the appropriateness of the directions, actions or inac- tions of any employee or agent of the municipality or member of Council relating to the proposed Wascana Village development; (c) whether the mechanisms in place in the municipality for the identification, disclosure and addressing of pecuniary interests in matters brought before Council are appropriate and effective. 2. The Inspector shall prepare a written report in relation to the matters under his inspection outlining his findings of fact, conclusions and any recommendations and provide the report to the Minister and to the Council as soon as reasonably possible. 4 The Inspector issued an Interim Report on July 10, 2014 in which he recommended that the Minister issue a new order for an Inquiry pursuant to s. 397 of the Act. 5 On July 24, 2014, the Minister issued an Order for an Inquiry. The Order for the Inquiry provided in part the following (Saskatchewan, Fi- nal Report of the Inspection and Inquiry into the R.M. of Sherwood No. 159, (Saskatchewan: Minister of Government Relations, 2014) [Barclay Report]): ... 3. I consider it necessary to appoint the Honourable R.L. Barclay, Q.C. as an Inquiry Officer pursuant to subsection 397(3) of The Mu- nicipalities Act to inquire into the conduct of members of council and agents of the municipality and the affairs of the municipality in relation to the matters identified in the terms of reference set out in 112 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

Schedule “A” attached hereto, concurrently with his duties as an Inspector. (p. 5 of the Barclay Report) 6 The terms of reference were the following: 1. The Inquiry will inquire into the appropriateness of the conduct of members of council and agents of the Rural Munici- pality of Sherwood No. 159 (the “municipality”) and the affairs of the municipality in relation to the developments proposed for section 33, township 16, range 19 and the northern half of section 28, township 16, range 19 (the “proposed development”), including, without limiting the generality of the foregoing: (a) whether members of council or agents of the municipality had or have pecuniary interests in the proposed development, and if so whether such interests were appropriately identified and disclosed; and (b) whether members of council or agents of the municipality, directly or indirectly, inappropriately attempted to influence, promote or advance the proposed development to benefit any such pecuniary interests. 2. In conducting the Inquiry into the appropriateness of conduct and affairs, the Inquiry Officer shall consider the relevant standards applicable to members of municipal council by vir- tue of The Municipalities Act, (the “Act”), the Official Oath prescribed in Form A of The Municipalities Regulations, the municipality’s Code of Conduct and the common law in relation to conflicts of interest as it relates to the duties of members of council to the municipality and the public. 3. In the event the Inquiry Officer is considering making an adverse finding in relation to conduct, the Inquiry Officer will provide reasonable notice of the substance of the allegation and the individual(s) would have a reasonable opportunity during the Inquiry to be heard in person or by counsel. Any notice of such alleged conduct will be delivered on a confidential basis to the person(s) to whom the allegations relate. 4. The Inquiry Officer shall prepare a written report with the results of the Inquiry outlining his findings, conclusions and any recommendations and provide the report to the Minister, the Council, and any person who receives a notice pursuant to section 3 of the Terms of Reference. The written report will Baker v. Sherwood No. 159 (Rural Municipality) E.J. Gunn J. 113

be provided on or before December 31, 2014, unless otherwise extended by the Minister. 5. To conduct the Inquiry, the Inquiry Officer shall have the powers provided for in section 397 of the Act which includes the power to: (a) require the attendance of any officer of the municipality or of any other person whose presence the Inquiry Officer considers necessary during the course of the Inquiry; (b) require a person to give evidence under oath or after making any affirmation or declaration, orally or in writing, for the purpose of the Inquiry, and for that purpose may require a person to attend at any location; and (c) require a person to produce to the Inquiry Officer, or to a person designated by the Inquiry Officer, all records and other property in his or her custody or control that may relate in any way to the matters that are the subject of the Inquiry. 6. The Inquiry Officer may determine the rules of, as well as the process and procedure for, the Inquiry as he sees fit, subject to the requirement that the Inquiry proceedings will not be open to the public. 7. The Inquiry Officer may consider any document, including electronic record, or any other evidence, verbal or written, that he considers relevant and reliable. 8. The Inquiry Officer will provide interim progress reports on the Inquiry to the Minister and the Council. 9. The Inquiry Officer shall carry out this Inquiry concurrently with his mandate to perform an Inspection of the municipality pursuant to the Minister’s Order of June 16, 2014, including, to the extent possible, utilising the same proceedings, records and evidence to fulfill both mandates. (pps. 6-7 of the Barclay Report) 7 On July 30, 2014, the RM council held a meeting. A portion of the meeting was held in-camera and Joel Hesje, Q.C. of McKercher LLP advised the councillors of the need to secure their own lawyers in matters involving the Inquiry as he was unable to act on their behalf given that he was the RM’s lawyer. This same advice had been provided on June 20, 2014 by Dan Kwochka of McKercher LLP. 114 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

8 On October 2, 2014, Mr. Hesje provided a legal opinion to the RM on whether or not the RM could “reimburse the Reeve and Councillors for legal expenses incurred in responding to the Inspection/Inquiry being conducted by Ronald Barclay pursuant to the provisions of The Munici- palities Act.” 9 The RM council, at its regularly scheduled meeting of October 8, 2014, passed Resolution 534/14 directing its Chief Administrative Of- ficer [CAO] to work with legal counsel towards drafting a policy and bylaw for reimbursement of legal expenses for council members and staff, to be considered by council in November 2014. 10 Written notice dated October 17, 2014 was given of a special meeting of council for October 18, 2014 at 4:00 p.m., the purpose of which was to consider “A Bylaw to Provide for the Indemnity and Defence of Mem- bers or [sic] Council Against Liability Incurred While Acting on Behalf of the Municipality”. The RM council held a special meeting on Satur- day, October 18, 2014. The RM council passed Bylaw 17/14 unanimously. 11 During the course of the Inspection and the Inquiry, the RM retained its own legal counsel and four of the RM’s councillors retained personal legal counsel. One notice of Potential Adverse Finding was served in relation to Reeve Kevin Eberle.

THE BYLAW A BYLAW TO PROVIDE FOR THE INDEMNITY AND DE- FENCE OF MEMBERS OR [SIC] COUNCIL AGAINST LIABIL- ITY INCURRED WHILE ACTING ON BEHALF OF THE MUNICIPALITY WHEREAS Subsection 355(3) of The Municipalities Act authorizes Rural Municipalities to pay costs of defending an action against certain municipal officials based on acts or omissions done or made in good faith in the course of his or her duties, and to pay any sum required to settle such action or proceeding against such persons. AND WHEREAS the Council of the Rural Municipality of Sher- wood No. 159, in the Province of Saskatchewan wishes to enact a bylaw to provide for the indemnification of municipal officials. NOW THEREFORE the Council of the Rural Municipality of Sher- wood No. 159, in the Province of Saskatchewan enacts as follows: ... Baker v. Sherwood No. 159 (Rural Municipality) E.J. Gunn J. 115

2. Purpose and Intent This bylaw is intended to provide for the indemnification of certain municipal officials, for costs, loss and damages incurred as a result of acts or omissions done in good faith in the course of his or her duties. 3. Definitions In this bylaw: a. “Municipal Official” means a person who is a member of Council, a member of a committee or other board established pursuant to Clause 81(a) of The Municipalities Act, a member of a public utility board established pursuant to Subsection 33(2), or a member of a control corporation. b. “RM” means the Rural Municipality of Sherwood No. 159 4. Provisions a. The RM shall indemnify a Municipal Official to the extent provided in Section 4(b) in respect of any action or proceeding arising out of acts or omissions done or made by such person in the course of his or her duties as a Municipal Official, if he or she acted honestly and in good faith with a view to the best interests of the RM. b. The RM shall indemnify a person referred to in Section 4(a) by: i. Assuming the cost of defending such person in an action or proceeding; ii. Paying any damages or costs awarded against such person as a result of such action or proceeding; To the extent that such costs, damages, expenses or sums are not assumed, paid or reimbursed in the provision of the RM’s insurance for the benefit and protection of such person against liability incurred by him or her. c. Request for payment of reimbursement of cost, or damages pursuant to the provisions of this bylaw shall be made to the Chief Administrative Officer of the RM and the Chief Administrative Officer is authorized to pay such costs provided that such 116 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

cost or damages meet the requirements of this bylaw. d. The Chief Administrative Officer has the right to have any legal costs assessed as to the reasonableness of such fees that otherwise qualify for payment pursuant to this Bylaw, prior to making payment or reimbursement for such legal fees. ...

Issues 1. Is context a relevant consideration when evaluating the legality of the Bylaw? 2. Do the applicants have standing to bring the application? a. The Legislation b. The Facts c. Conclusion 3. Jurisdiction of the court to review and the proper scope of judicial review a. Jurisdiction b. Proper Scope of Judicial Review 4. Is the Bylaw authorized under s. 355 of the Act? 5. Is the Bylaw authorized under any other section of the Act? a. Is the Bylaw authorized under s. 82 of the Act? b. Is the Bylaw authorized under s. 8 of the Act? i) Can a municipality legislate on subject matter expressly dealt with by the province? ii) What does the “good government” provision provide for? iii) To what extent is a purposive approach to the interpretation of bylaws engaged if the Act has specifically addressed a given issue? 6. Does the Bylaw illegally delegate authority to the Chief Adminis- trative Officer contrary to ss. 127(o)? Baker v. Sherwood No. 159 (Rural Municipality) E.J. Gunn J. 117

Analysis RE: 1. Is context a relevant consideration when evaluating the legality of the Bylaw? 12 Evaluating the validity of a bylaw involves examining several factors. As indicated by Ian MacF. Rogers, The Law of Canadian Municipal Cor- porations, loose-leaf (2007-8) 2d ed (Toronto: Thomson Carswell, 2007) at 409 [Rogers], “Defects may be found on the face of a by-law and in the proceedings leading up to its enactment which may render it void or voidable.” Rogers (at 409 and 410) identifies the following requirements for a valid bylaw: 1) there must be a valid municipal corporation; 2) the by-law must be passed by a duly convened meeting of the council at which the majority of a quorum (not disqualified by interest) concur; 3) it must be authenticated in the manner required by law; 4) it must be within the express or implied powers of the local authority; 5) it must not be repugnant to the law of the province or the Dominion; 6) it must be made bona fide in the interests of the inhabitants and not to serve a private interest; 7) it must not discriminate or create a monopoly and it must be reasonable; 8) it must have certainty of meaning; 9) all conditions precedent to its enactment must be observed; and 10) it must be duly promulgated and published if required by law. [Emphasis added] 13 Thus, the context of a bylaw will inevitably be relevant. The applicants assert that the Bylaw served the private interests of the councillors subpoened to testify at the Inquiry. Determining whether a bylaw serves a private interest will require considering the circumstances in which it was enacted. 14 A bylaw that has been passed for the purpose of serving the interests of private citizens is contrary to municipal council’s duty to act in the best interest of the public and is voidable (Rogers at 1019). This being said, because municipal council is in the best position to determine what 118 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

is “public interest”, the onus is on the person who alleges that council had acted to promote private interests to prove this fact (Rogers at 1020). 15 Some relevant considerations described by Rogers are the following (at 1020): In testing whether a by-law is passed in the public interest, the primary moving force behind the by-law must be looked at and if that force emanates from a private source and is to reap the primary direct benefit from the by-law leaving to the public only the secondary and indirect benefit, it has been said that the by-law is in the private and not in the public interest. On the other hand, even though the activat- ing force behind the passing of a by-law is in an individual who would derive benefit from it, so long as the members were not influ- enced by the direct benefit flowing to the individual but by consideration for the public welfare, it cannot be said that the bylaw was passed to serve interests. [footnotes omitted] 16 The Supreme Court has also dealt with this issue in Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5 (S.C.C.) [Catalyst] where Chief Justice McLachlin said the following at para. 28: 28 Another set of limitations on municipalities passing bylaws flows from the need for reasonable processes. In determining whether a particular bylaw falls within the scope of the legislative scheme, factors such as failure to adhere to required processes and improper mo- tives are relevant. Municipal councils must adhere to appropriate processes and cannot act for improper purposes. As Gonthier J. stated for the Court in Immeubles Port Louis Lt´ee v. Lafontaine (Village), [1991] 1 S.C.R. 326, “[a] municipal act committed for unreasonable or reprehensible purposes, or purposes not covered by legislation, is void” (p. 349).

RE: 2. Do the applicants have standing to bring the application? a. The Legislation 13 Section 358 of the Act provides as follows: 358(1) Subject to subsections (2) and (3), any voter of a municipality, any owner or occupant of property or a business within the municipality or the minister may apply to the court to quash a bylaw or resolution in whole or in part on the basis that: (a) the bylaw or resolution is illegal in substance or form; (b) the proceedings before the passing of the bylaw or resolution do not comply with this or any other Act; or Baker v. Sherwood No. 159 (Rural Municipality) E.J. Gunn J. 119

b. The Facts 17 Twelve of the applicants filed affidavits in which they attest to the fact that they are voters and they own land in the RM. One affiant de- posed to the fact that he was a voter and that he was the Chief Executive Officer of a corporation that owned land in the RM.

c. Conclusion 18 It is clear that each of the applicants have standing to challenge the Bylaw. No issue was taken by the RM.

RE: 3. Jurisdiction of the court to review and the proper scope of judicial review a. Jurisdiction 19 The conduct of a municipality is subject to judicial review. (See Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231 (S.C.C.) [Shell Canada]) (See also Catalyst at para 10) Both parties are in agreement on the jurisdiction of the court.

b. Proper Scope of Judicial Review 20 The approach taken by the courts in the interpretation of municipal legislation has changed over time. 21 In R. v. Greenbaum, [1993] 1 S.C.R. 674 (S.C.C.) [Greenbaum], Iacobucci J. said the following at p. 687: Municipalities are entirely the creatures of provincial statutes. Ac- cordingly, they can exercise only those powers which are explicitly conferred upon them by a provincial statute. ... 22 Two rules of construction with respect to the interpretation of bylaws have received support in the Supreme Court in Greenbaum. The first rule is that “in interpreting general words and phrases, the meaning should be given to them which best suits the particular subject matter with reference to which the words are used.” And the second rule is “that if words in a statute are fairly susceptible of two constructions of which one will result in the statute being intra vires, and the other will have the contrary result the former is to be adopted.” (See p. 689) 120 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

23 In 114957 Canada Ltée (Spray-Tech, Société d’arrosage) c. Hudson (Ville), 2001 SCC 40, [2001] 2 S.C.R. 241 (S.C.C.) [Hudson], L’Heureux-Dubé J. cited with approval a quote from R. v. Sharma, [1993] 1 S.C.R. 650 (S.C.C.) in para. 18: In R. v. Sharma ..., this Court recognized “the principle that, as statutory bodies, municipalities ‘may exercise only those powers expressly conferred by statute, those powers necessarily or fairly implied by the expressed power in the statute, and those indispensable powers essential and not merely convenient to the effectuation of the purposes of the corporation’ ... 24 And the following at para. 49 of Hudson: 49 A tradition of strong local government has become an important part of the Canadian democratic experience. This level of government usually appears more attuned to the immediate needs and concerns of the citizens. Nevertheless, in the Canadian legal order, as stated on a number of occasions, municipalities remain creatures of provincial legislatures (see Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [2000] 2 S.C.R. 409, 2000 SCC 45, at paras. 33-34; Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General), [2001] 1 S.C.R. 470, 2001 SCC 15, at paras. 29 and 58-59). Municipalities exercise such powers as are granted to them by legislatures. This principle is illustrated by numerous decisions of our Court (see, for example, Montréal (City of) v. Arcade Amusements Inc., [1985] 1 S.C.R. 368; R. v. Sharma, [1993] 1 S.C.R. 650). They are not endowed with residuary general powers, which would allow them to exercise dormant provincial powers (see I. M. Rogers, The Law of Canadian Municipal Corporations (2nd ed. (loose-leaf)), Cum. Supp. to vol. 1, at pp. 358 and 364; J. Hétu, Y. Duplessis and D. Pakenham, Droit Municipal: Principes généraux et contentieux (1998), at p. 651). If a local government body exercises a power, a grant of authority must be found somewhere in the provincial laws. Although such a grant of power must be construed reasonably and generously (Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13), it cannot receive such an interpretation unless it already exists. Interpretation may not supplement the absence of power. 25 In Shell Canada, Justice McLachlin (as she then was) wrote a strong dissent which signalled a change in the approach to be taken to a more Baker v. Sherwood No. 159 (Rural Municipality) E.J. Gunn J. 121

non-interventionist interpretation of municipal legislation. She said the following at p. 244: The weight of current commentary tends to be critical of the narrow, pro-interventionist approach to the review of municipal powers, supporting instead a more generous, deferential approach: S. M. Makuch, Canadian Municipal and Planning Law (1983), at pp. 5-6; McDonald, supra; Arrowsmith, supra, at p. 219. Such criticism is not unfounded. Rather than confining themselves to rectification of clear excesses of authority, courts under the guise of vague doctrinal terms such as “irrelevant considerations”, “improper purpose”, “reasonableness”, or “bad faith”, have not infrequently arrogated to themselves a wide and sweeping power to substitute their views for those of the elected representatives of municipalities. To the same effect, they have “read in” principles of statutory construction such as the one which states that a by-law cannot affect “common law rights” unless the statute confers authority to do so “in plain language or by necessary implication”; City of Prince George v. Payne, [1978] 1 S.C.R. 458, at p. 463. The result is that, to quote McDonald (at p. 79), “despite the court’s protestations to the contrary, they do, in fact, interfere with the wisdom which municipal councils exercise”. 26 Professor Felix Hoehn in his work Municipalities and Canadian Law: Defining the Authority of Local Governments (Saskatoon: Purich Pub- lishing, 1996) said at pps. 21 and 22: McLachlin J. saw an emerging consensus among commentators that courts should take a more deferential approach. Where powers are not expressly conferred but must be implied, courts should adopt the “benevolent construction” referred to in Greenbaum. Hence, the courts should not find a municipal decision ultra vires unless this had been clearly demonstrated. She preferred this over the interventionist approach for three reasons. First, she considered it important for local democracy that municipalities be able to reflect local values, and this requires that courts respect this responsibility. Second, it would avoid the costs and uncertainty associated with excessive litigation when municipalities have to defend the validity of the exercise of their powers. Third, it would be more consistent with municipalities’ ex- panding range of responsibilities, so they would not be confined “in the strait-jacket of tradition.” 27 In Duffield v. Prince Albert (City), 2015 SKCA 46 (Sask. C.A.) [Duf- field] at para 33, Justice Caldwell explained the reasoning underpinning the dissent in Shell Canada in quoting this same paragraph with approval. (Application for leave to appeal filed June 25, 2015) 122 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

28 Ten years after its decision in Shell Canada, the Supreme Court revisited its approach to the interpretation of municipal legislation in United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485 (S.C.C.). Justice Bastarache said the following at paras. 6-8: 6 The evolution of the modern municipality has produced a shift in the proper approach to the interpretation of statutes empowering municipalities. This notable shift in the nature of municipalities was acknowledged by McLachlin J. (as she then was) in Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231, at pp. 244- 45. The “benevolent” and “strict” construction dichotomy has been set aside, and a broad and purposive approach to the interpretation of municipal powers has been embraced: Nanaimo, supra, at para. 18. This interpretive approach has evolved concomitantly with the modern method of drafting municipal legislation. Several provinces have moved away from the practice of granting municipalities specific powers in particular subject areas, choosing instead to confer them broad authority over generally defined matters: The Municipal Act, S.M. 1996, c. 58, C.C.S.M. c. M225; Municipal Government Act, S.N.S. 1998, c. 18; Municipal Act, R.S.Y. 2002, c. 154; Municipal Act, 2001, S.O. 2001, c. 25; The Cities Act, S.S. 2002, c. C-11.1. This shift in legislative drafting reflects the true nature of modern municipalities which require greater flexibility in fulfilling their statutory purposes: Shell Canada, at pp. 238 and 245. 7 Alberta’s Municipal Government Act follows the modern method of drafting municipal legislation. The legislature’s intention to enhance the powers of its municipalities by drafting the bylaw passing provisions of the Act in broad and general terms is expressly stated in s. 9. Accordingly, to determine whether a municipality is authorized to exercise a certain power, such as limiting the issuance of taxi plate licences, the provisions of the Act must be construed in a broad and purposive manner. 8 A broad and purposive approach to the interpretation of municipal legislation is also consistent with this Court’s approach to statutory interpretation generally. The contextual approach requires “the words of an Act ... to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: E. A. Driedger, Con- struction of Statutes (2nd ed. 1983), at p. 87; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26. This approach is also consistent with s. 10 of Alberta’s Interpretation Act, R.S.A. 2000, c. I-8, which provides that every provincial enact- Baker v. Sherwood No. 159 (Rural Municipality) E.J. Gunn J. 123

ment must be given a fair, large and liberal construction and interpretation that best ensures the attainment of its objects. 29 More recently in Catalyst, McLachlin, C.J. set out the guiding principles behind the court’s power to set aside municipal bylaws: 10 It is a fundamental principle of the rule of law that state power must be exercised in accordance with the law. The corollary of this constitutionally protected principle is that superior courts may be called upon to review whether particular exercises of state power fall outside the law. We call this function “judicial review”. 11 Municipalities do not have direct powers under the Constitution. They possess only those powers that provincial legislatures delegate to them. This means that they must act within the legislative con- straints the province has imposed on them. If they do not, their decisions or bylaws may be set aside on judicial review. 12 A municipality’s decisions and bylaws, like all administrative acts, may be reviewed in two ways. First, the requirements of procedural fairness and legislative scheme governing a municipality may require that the municipality comply with certain procedural requirements, such as notice or voting requirements. If a municipality fails to abide by these procedures, a decision or bylaw may be invalid. But in addition to meeting these bare legal requirements, municipal acts may be set aside because they fall outside the scope of what the empowering legislative scheme contemplated. This substantive review is premised on the fundamental assumption derived from the rule of law that a legislature does not intend the power it delegates to be exercised unreasonably, or in some cases, incorrectly. 13 A court conducting substantive review of the exercise of delegated powers must first determine the appropriate standard of review. This depends on a number of factors, including the presence of a privative clause in the enabling statute, the nature of the body to which the power is delegated, and whether the question falls within the body’s area of expertise. Two standards are available: reasonableness and correctness. See, generally, Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 55. If the applicable standard of review is correctness, the reviewing court requires, as the label suggests, that the administrative body be correct. If the applicable standard of review is reasonableness, the reviewing court requires that the decision be reasonable, having regard to the processes followed and whether the outcome falls within a reasonable range of alternatives in light of the legislative scheme and contextual factors relevant to the exercise of the power: Dunsmuir, at para. 47. ... 124 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

15 Unlike Parliament and provincial legislatures which possess inherent legislative power, regulatory bodies can exercise only those legislative powers that were delegated to them by the legislature. Their discretion is not unfettered. The rule of law insists on judicial review to ensure that delegated legislation complies with the rationale and purview of the statutory scheme under which it is adopted. ... 30 In Duffield, Caldwell J.A. confirmed that the standard for review is that of correctness. (See paras. 3 and 4) I find that in this case the standard for review is that of correctness.

RE: 4. Is the Bylaw authorized under s. 355 of the Act? 31 The preamble to the Bylaw refers to ss. 355(3) of the Act as the source for the RM’s authority to enact the Bylaw. Sections 355(1) to (3) provides as follows: Immunity re acts of members of council and council committees 355(1) No action or proceeding lies or shall be instituted against a member of council, a member of a committee or other body established pursuant to clause 81(a), a member of a public utility board established pursuant to subsection 33(2), a member of a controlled corporation of a municipality or any municipal officer, volunteer worker or agent of the municipality for any loss or damage suffered by a person by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done by any of them pursuant to or in the exercise or supposed exercise of any power conferred by this Act or the regulations or in the carrying out or supposed carrying out of any duty imposed by this Act or the regulations. (2) Subsection (1) does not affect the liability of a mere contractor with the municipality, nor of any official or employee of any contractor, by reason of whose act or neglect the damage was caused. (3) A municipality may pay the cost of: (a) defending an action or proceeding against a member of council, a member of a committee or other body established pursuant to clause 81(a), a member of a public utility board established pursuant to subsection 33(2) or a member of a controlled corporation that claims liability on the part of that person for acts or omissions done or made by the person in good faith in the course of his or her duties; or (b) any sum required to settle the action or proceeding mentioned in clause (a). Baker v. Sherwood No. 159 (Rural Municipality) E.J. Gunn J. 125

32 Section 356 of the Act is a companion section which deals with how the municipality should deal with acts of municipal bodies, municipal officers and volunteers. It provides as follows: Acts of members of municipal bodies, municipal officers, volunteers, etc. 356(1) A municipality is vicariously liable for loss or injury arising from any act or omission of a municipal officer, a volunteer worker or an agent of the municipality acting in the course of his or her duties if the officer, volunteer worker or agent would otherwise be personally liable. (2) The municipality shall: (a) pay the cost of defending an action or proceeding against a municipal officer, volunteer worker or agent of the municipality claiming liability on the part of that person for acts or omissions done or made by the person in the course of his or her duties or pay any sum required to settle the action or proceeding; and (b) pay the damages and costs awarded against a municipal officer, volunteer worker or agent of the municipality as a result of a finding of liability on the part of any of them for acts or omissions done or made by any of them in the course of his or her duties. 33 The question to be addressed then, is the proper interpretation and vires of the Bylaw passed by the RM and the proper interpretation of s. 355 of the Act pursuant to which the Bylaw was passed. “Under constitutional law, it is trite that municipal bylaws are always subordinate to par- amount provincial legislation, see: Ian MacF. Rogers, Q.C., The Law of Canadian Municipal Corporations, loose-leaf (2014-11) 2d ed, vol 2 (Toronto: Thomson Reuters, 2009).” (Duffield at para 16 per Caldwell J.A.) 34 Section 355(1) provides that no action or proceeding lies or shall be instituted against a member of council for loss or damage. Section 355(3) provides that a municipality may pay the cost of defending an action or proceeding claiming liability against a member of council or may pay any sum required to settle an action or proceeding claiming liability. 35 The language of the statute is clear. Section 355(3) makes it permissible for a municipality to pay the costs of defending “an action” or “proceeding” in which “liability” is claimed against a member of council. It further makes it permissible for the municipality to pay any sum required 126 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

to settle “an action or proceeding” in which liability is claimed. The parameters established by the Act are limited and are clear. 36 In Goulet v. Buena Vista (Village), 2012 SKQB 503, 408 Sask. R. 267 (Sask. Q.B.) [Goulet], the applicant, who was the mayor of the respondent, sought an order of mandamus to require the respondent to pay the legal costs she incurred in defending various proceedings. 37 In his analysis, Barrington-Foote J. considered the meaning of the terms “action or proceeding” in relation to s. 356 of the Act. He said the following at paras. 23-25: 23 ... It is trite law that the meaning of the words in a statute depends on the context in which they are used, including the immediate context comprised of the provision at issue, and closely related provisions: see Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, Fourth Edition (Toronto: Butterworths, 2002). 24 In this case, the key context is provided by s. 356 itself. Section 356 of the Act is made up of two subsections. Subsection 356(1) provides that the municipality is “vicariously liable for loss or injury arising from any act or omission of a municipal officer, volunteer worker or agent of the municipality acting in the course of her or her duties if the officer, volunteer worker or agent would otherwise be personally liable”. This section, speaking as it does to “loss or injury arising” and personal liability, is aimed at claims for compensation by third parties against the employee or other actor. It is not, for example, aimed at prosecutions or regulatory proceedings claiming penalties, fines or similar levies as a result of a breach of statute, as the concept of vicarious liability for “loss or injury arising” would not make sense in that context. 25 Subsection 356(2) is a companion to ss. 356(1), and is aimed at the same category of claims. That is, it speaks to claims by a third party that an employee or other municipal actor is liable for loss or injury caused to a third party while acting in the course of his or her duties. While ss. 356(1) confirms vicarious liability for those claims, thereby protecting the third party, ss. 356(2) deals with the financial consequences to the employee or other municipal actor, being legal costs, the costs of settlement and the payment of any costs or damages that may be awarded. Read as whole, the purpose of s. 356 is to assign the financial burden arising from such claims to the municipality, thereby protecting both the claimant and the employee or other actor. Baker v. Sherwood No. 159 (Rural Municipality) E.J. Gunn J. 127

38 Justice Barrington-Foote went on to say the following at para. 27: 27 The language of the statute would have to be far clearer to support the interpretation advanced by the applicant. It would be extraordinary for a legislature to provide that a council member, faced with censure or changes in council procedures driven by a political or administrative disagreements between members of council, had the right to recover his or her legal costs of obtaining legal advice or seeking redress in the courts, from the public purse. That is so regardless of whether, as alleged by the applicant, there was a breach of a duty of fairness or bias on the part of councillors. Section 356 was simply not intended to deal with matters of this kind. 39 The respondent submits that the ratio of Goulet is that the mayor could not seek compensation under ss. 356(1) as she did not fit within the category of persons named in ss. 356(1). The respondent submits that any additional comments are obiter. I agree with the position taken by the respondent to the extent that the general comments of Barrington- Foote J. in respect to the interpretation of s. 356 are for the most part obiter and not binding upon me in any event. However I would say that I find his reasoning to be persuasive. 40 Bylaw 17/14 is far more expansive than the circumstances contemplated by ss. 355(3) of the Act. The purpose and intent of the Bylaw is described as follows in clause 2: This bylaw is intended to provide for the indemnification of certain municipal officials, for costs, loss and damages incurred as a result of acts or omissions done in good faith in the course of his or her duties. 41 The Bylaw goes on to make certain provisions which include in part the following: a. The RM shall indemnify a Municipal Official to the extent provided in Section 4(b) in respect of any action or proceeding arising out of acts or omissions done or made by such person in the course of his or her duties as a Municipal Offi- cial, if he or she acted honestly and in good faith with a view to the best interests of the RM. b. The RM shall indemnify a person referred to in Section 4(a) by: i. Assuming the cost of defending such person in an action or proceeding; ii. Paying any damages or costs awarded against such person as a result of such action or proceeding; ... 128 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

42 Section 355(3) uses the word “may” whereas the Bylaw uses the word “shall”. The Act limits the circumstances to those where there is an action or proceeding in which liability is claimed against the member of council (or other named categories of individuals) for acts or omissions done or made by the person in good faith in the course of his or her duties. The Bylaw applies to all actions or proceedings arising out of acts or omissions done or made by the member of council (or other named categories of individuals) if the person acted honestly and in good faith with a view to the best interests of the RM. There is no requirement in provision 4(a) of the Bylaw that the person to be indemnified be named as a defendant in the action or a respondent in the proceeding. 43 The potential liability for the ratepayers is significantly greater if By- law 14/17 is found to be intra vires than it would be on a simple interpretation of s. 355 of the Act. 44 Considering the context in which this Bylaw was passed, the RM was highly critical of the fact that the Inspector and Inquiry Officer had the benefit of publicly funded counsel and that individual councillors did not. The Barclay Report makes reference to this issue at p. 11: In addition to the submissions on disclosure and adjournment, various parties also made submissions - both oral and written - requesting an order in relation to the reimbursement of legal fees associated with their participation in the Inspection/Inquiry. As I was provided no jurisdiction to make any orders as to funding, these applications were all dismissed. 45 The RM points to the process followed by the Inspector and Inquiry Officer in conducting his investigation and inquiry as being very like a superior court trial. In the view of the respondent, this would be persuasive to a councillor that counsel would be advisable. 46 However it might be said that the formality of the process and the procedures put in place by the Inquiry Officer served to promote the fairness of the process. A review of the Barclay Report makes it clear that the hearings were not open to the public, that all witnesses were provided with information on how to claim immunity and that they were entitled to have counsel present. 47 The RM also provided for the court’s review the legal opinion provided to the RM. This was done, I presume, to show that the RM considered its position thoughtfully prior to passing the impugned Bylaw. 48 Even taking a purposive approach to the interpretation of the relevant provisions of the Act and the terms of the Bylaw, I cannot conclude that Baker v. Sherwood No. 159 (Rural Municipality) E.J. Gunn J. 129

the Bylaw was intra vires. Council has exceeded its authority in purporting to provide for indemnification of councillors in circumstances where they are not the subject of a claim for liability.

RE: 5. Is the Bylaw authorized under any other section of the Act? 49 Even though the Bylaw references s. 355 of the Act, it is clear that the recital of authority pursuant to which a bylaw is enacted is not a necessary component to a bylaw; the authority of the council is presumed until the contrary is proven (Rogers at 416). When a bylaw does not list any authority, a judge must regard the bylaw as having been passed from the power that would allow for its passage (Rogers at 416). If the bylaw cites the wrong authority in its recitals, the bylaw is not invalidated if authority exists elsewhere (Rogers at 417). 50 Justice Monroe in Delta (Municipality) v. Dawson, 1975 CarswellBC 328 (B.C. S.C.) had this to say at paras. 2 and 3: 2 The notices purport to have been given pursuant to By-law No. 2169, adopted on October 28, 1974, which recites that the By-law was enacted pursuant to Sections 504 and 641 of the Municipal Act ... 3 The plans annexed to and forming part of the notices show the purposes for which the property is being expropriated, none of which, I hold, fall within the ambit of Sections 504 or 641 of the Municipal Act but the expropriation for such purposes is authorized by Sections 621 and 563 of the said Act. That error is not fatal to the validity of the By-law or the Notices of Expropriation: Applewood Dixie Ltd. v. Town of Mississauga (1969) 2 O.R. 467; affirmed [1970] S.C.R. 691. 51 Accordingly I will review other provisions of the Act to see if the requisite authority can be found elsewhere.

a. Is the Bylaw authorized under s. 82 of the Act? 52 Section 82 is the general compensation and remuneration section of the Act. It provides as follows: Remuneration, etc., of members of council 82(1) Each member of council is to be paid any remuneration and benefits and any reimbursement or allowances for expenses that may be fixed by the council. (2) One-third of the total remuneration paid to a member of council is deemed to be paid with respect to general expenses incurred that are incidental to the discharge of the duties of a member of council. 130 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

(3) Subject to any terms and conditions that the council considers proper, a council may include any or all members of the council in an existing plan of superannuation or a benefit fund maintained for the benefit of its employees. 53 It is noteworthy that the Act does provide for reimbursement of legal expenses in limited circumstances. Section 151 provides as follows: Reimbursement 151(1) The council may reimburse the person with respect to whom an application pursuant to this Part was made for any costs and expenses that the council considers reasonable, other than costs that have already been awarded to the person by the judge, if: (a) the application is dismissed; or (b) an order is issued declaring the person able to remain a member of council. (2) The council may reimburse a voter for legal expenses incurred in bringing an application pursuant to this Part, in addition to costs awarded to the person by the judge, if: (a) the application is successful; or (b) an order is issued declaring that the person with respect to whom the application was made is disqualified to remain a member of council. 54 This provision applies when an application is made to disqualify a councillor. The consideration of whether to reimburse for expenses incurred occurs after the application is dismissed. 55 It would not appear to be consistent with the object and scheme of the Act for s. 82 to authorize the reimbursement of legal expenses incurred by an individual council member in circumstances not contemplated by ss. 151 and 355.

b. Is the Bylaw authorized under s. 8 of the Act? 56 Section 8 provides in part as follows: 8(1) A municipality has a general power to pass any bylaws for the purposes of the municipality that it considers expedient in relation to the following matters respecting the municipality: (a) the peace, order and good government of the municipality; ... i) Can a municipality legislate on subject matter expressly dealt with by the province? Baker v. Sherwood No. 159 (Rural Municipality) E.J. Gunn J. 131

57 The right to enact a bylaw must be expressly assigned by a province to a municipal corporation (Rogers at 436). Bylaws are “inferior” laws that cannot be inconsistent with provincial legislation (Rogers at 344.1). Rogers points out, at p. 345: Since a by-law is a form of local legislation, it is for this reason that it must not be at variance with provincial legislation. It is a cardinal rule of municipal law that all by-laws are subject to the general law of the realm and are subordinate to it and any by-laws which are repugnant to or inconsistent with general provincial legislation are void and of no effect, or else are superseded to the extent that the legislation has acted. 58 This point is reflected in a statement made by Mr. Justice Caldwell in Duffield: “it is trite that municipal bylaws are always subordinate to para- mount provincial legislation” (at para. 16). However, the fact that a municipality has legislated on similar subject matter is not determinative. Provincial legislation will only render void a municipal enactment if the provisions both deal with the same subject matter and are in direct conflict. Thus, where the provisions can co-exist, they do. In order to determine whether conflict exists, ask: Is it possible to comply with both? (Rogers at 348). 59 The Act, through ss. 8(1)(a), grants municipalities the broad authority to pass bylaws that promote the “peace, order and good government of the municipality.” The ambiguity of this subsection is both necessary yet problematic. While it provides to a municipality a considerable degree of autonomy in their legislative processes, it allows a municipal corporation to enact bylaws under the guise of a subsection that may or may not promote the stated purpose. Section 8(1)(a) is particularly problematic when a municipality enacts a bylaw on subject matter that is expressly dealt with through provincial legislation. In such cases, it must be determined whether the bylaw and relevant legislation can co-exist, and if not, to what extent. Section 11 of the Act states: Relationship between bylaws, resolutions and provincial laws 11 If there is a conflict between a bylaw or resolution and this or any other Act or regulation, the bylaw or resolution is of no effect to the extent of the conflict. 60 Ontario (Attorney General) v. Mississauga (City) (1981), 124 D.L.R. (3d) 385 (Ont. C.A.) [Mississauga] considers the powers of the municipality in relation to the provincial legislature. The court cites Morrison v. Kingston (City), [1937] 4 D.L.R. 740 (Ont. C.A.) [Morrison], where Jus- 132 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

tice Middleton recognizes “where the Provincial Legislature has itself undertaken to deal with a certain subject-matter in the interest of the inhabitants of the Province all legislation by the municipality must be subject to the provincial enactment” (Mississauga at 390). Justice Morden proceeds to clarify the matter: “Where the municipality, acting within its powers, passes more stringent, enhancing, legislation than the provisions of a statute, it cannot be said that the two pieces of legislation cover the same ground. There is room for the municipal law to operate”. (Missis- sauga at 400) 61 In 1999, the British Columbia Court of Appeal held that competing enactments must be approached by examining how the provisions operate and determining whether they can co-exist (British Columbia Lottery Corp. v. Vancouver (City), 1999 BCCA 18 (B.C. C.A.) at para 19, (1999), 169 D.L.R. (4th) 141 (B.C. C.A.) [BC Lotto]); “A true and outright conflict can only be said to arise when one enactment compels what the other forbids” (BC Lotto at para 20). In BC Lotto, the court determined that because the bylaw forbid what the regulation merely permitted, not compelled, the two enactments could co-exist. 62 Thus, municipalities and provincial legislation can cover the same subject matter, in absence of a conflict. What is important to note here is that the subject matter covered by the provincial legislation is not only the same as the subject matter covered by the Bylaw, but specifically addresses the powers of the municipality in relation to the subject matter covered by the Bylaw.

ii) What does the “good government” provision provide for? 63 In Hudson the court was considering in broad terms, whether the Town of Hudson, Quebec acted within its authority in enacting a bylaw regulating and restricting pesticide use. It was conceded by the Town of Hudson that the only basis upon which it could enact the impugned bylaw was under the general “peace, order, good government” provisions of the provincial enabling statute. 64 L’Heureux-Dub´e J. considered the “peace, order, good government” provision of the relevant statute. She said the following at para. 53: ... [It] must be given some meaning. It reflects the reality that the legislature and its drafters cannot foresee every particular situation. It appears to be sound legislative and administrative policy, under such provisions, to grant local governments a residual authority to deal with the unforeseen or changing circumstances, and to address Baker v. Sherwood No. 159 (Rural Municipality) E.J. Gunn J. 133

emerging or changing issues concerning the welfare of the local community living within their territory. Nevertheless, such a provision cannot be construed as an open and unlimited grant of provincial powers. ... It does not allow local governments and communities to exercise powers in questions that lie outside the traditional area of municipal interests, even if municipal powers should be interpreted broadly and generously (see F. Hoehn, Municipalities and Canadian Law: Defining the Authority of Local Governments (1996), at pps. 17-24). 65 Justice Sopinka, speaking for the majority in Shell Canada, said the following at p. 276: In most cases, as here, the problem arises with respect to the exercise of a power that is not expressly conferred but is sought to be implied on the basis of a general grant of power. It is in these cases that the purposes of the enabling statute assume great importance. The approach in such circumstances is set out in the following excerpt in Rogers, The Law of Canadian Municipal Corporations, supra, 64.1, at p. 387, with which I agree: In approaching a problem of construing a municipal enactment a court should endeavour firstly to interpret it so that the powers sought to be exercised are in consonance with the purposes of the corporation. The provision at hand should be construed with reference to the object of the municipality: to render services to a group of persons in a locality with a view to advancing their health, welfare, safety and good government. ... 66 Bylaw 17/14 clearly states it relied on the permissive authority of ss. 355(3). No reference was made to s. 8 or the general responsibility of the municipality to provide “good government”. 67 The applicants submit this Bylaw was enacted for other than a municipal purpose. The respondent takes the position that the applicants have a very narrow interpretation of good governance. The respondent submits there is a need to support democratically elected councillors, and that the Bylaw was passed in the ordinary way, in a transparent and accountable way and not for an improper purpose. It is reasonable to infer that the Bylaw was passed for the purposes of the Inquiry but there was no pecuniary interest at stake. 68 Even though five of the six councillors were subpoenaed to testify, and may have had outstanding legal bills at the time Bylaw 14/17 was passed, the respondent asserts the individual councillors did not have a 134 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

pecuniary interest requiring disclosure, referencing ss. 143(2)(d) of the Act which provides as follows: 143(2) A member of council does not have a pecuniary interest by reason only of any interest: ... (d) that the member may have with respect to any allow- ance, honorarium, remuneration or benefit to which the member may be entitled by being a member of council; ... 69 The applicants submit there was an improper purpose evident in the timing of the Bylaw. The Bylaw is not restricted in its application to the Inquiry, but the context and timing would certainly suggest that was the object of the Bylaw. Both parties to this application have provided significant details on the conduct of the Inquiry. Members of council had already received subpoenas to testify. The Bylaw applies only to current members of council. And as previously found, it exceeded the parameters set by legislation in the Act for the provision of counsel to be funded by the ratepayers. 70 In Hudson the court cautions that bylaws enacted under such provisions be evaluated carefully. The court specifies: “... a municipality will not be permitted to invoke the implicit power granted under a “general welfare” provision as a basis for enacting by-laws that are in fact related to ulterior objectives, whether mischievous or not”. (at para. 20)

iii) To what extent is a purposive approach to the interpretation of bylaws engaged if the Act has specifically addressed a given issue? 71 The burden to prove the validity of a bylaw does not rest with the municipality; the party alleging the invalidity must prove this fact (Rog- ers at 416; Hudson at para 21) 72 In Morrison, Justice Middleton addresses the duplicity of legislation through the “good government” provision. Referencing the open-ended provisions that empower municipalities such as that found in s. 8 of the Act, Justice Middleton notes that “there must be some limitation to this power of self-government, otherwise the result will be chaos.” He identifies three limitations to this power. First, the municipality cannot legislate on any matters beyond the jurisdiction of the province. Second, where provincial legislation has undertaken to deal with a certain subject matter in the interests of the inhabitants of the Province, all legislation by Baker v. Sherwood No. 159 (Rural Municipality) E.J. Gunn J. 135

the municipality must be subject to the provincial enactment. Third, he states (at p. 744): A third limitation is, I think, to be found in the express enactments of The Municipal Act. Very few subjects falling within the ambit of local government are left to the general provisions of sec. 259. Almost every conceivable subject proper to be dealt with by a municipal council is specifically enumerated in the detailed provisions in the act, and, in some instances, there are distinct limitations imposed on the powers of the municipal council. These express powers are, I think, taken out of any power included in the general grant of power by sec. 259. ... 73 The power to legislate for the “welfare” of the inhabitants is too vague and general to admit of definition. It may mean so much that it probably does mean very little. It cannot include powers that are otherwise specifically given, nor can it be taken to confer unlimited and unre- strained power with regard to matters in which a conditional power only is conferred upon the subsidiary legislature. 74 In Saskatchewan (Attorney General) v. Plante (1981), 9 Sask. R. 23 (Sask. C.A.), the court sought to determine whether, in the face of provisions that set out the specific powers of council to enact bylaws respecting animals, which did not include the authority to enact bylaws that regulate animal noise, the municipality could enact bylaws to regulate noise under the “good government” provision. Bayda, J.A. held at para. 11: 11 As the Urban Municipality Act, supra, specifically provides for the council to enact or pass bylaws respecting dangerous dogs, the restraining and regulating the running at large of dogs, and control- ling the keeping of horses, cattle and other specified animals, this would appear to exhaust the legislative power of the council respecting the subject matter of animals unless it can be said the extended right to legislate arises by necessary implication from the nature and extent of the power given. In my view the sections of the Urban Mu- nicipality Act which give the City Council the specific authority to enact bylaws respecting animals, as I have already stated, exhaust the council’s right to legislate in this field. The language of the sections does not support the argument that the nature and extent of the powers granted give rise by necessary implication to the power of the council to enact Bylaw 17A. 75 Even though these cases pre-date the purposive approach of the Su- preme Court, it is worth considering if the articulated principles have changed as a result of the evolution of the purposive approach. In Green- baum, the Supreme Court of Canada cited with approval Justice Middle- 136 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

ton’s approach in Morrison. Twelve years later, in Montreal (Ville) v. 2952-1366 Québec inc., 2005 SCC 62, [2005] 3 S.C.R. 141 (S.C.C.) [Montréal], the court revisited these decisions. At issue in this case was whether the municipality had the authority to prohibit noise produced by outside sound equipment pursuant to its power to define and prohibit nui- sances. The municipality argued that if they did not have the authority under the nuisance provision, then the authority could be found in its general power to ensure peace and order. 76 The Supreme Court of Canada referenced both Greenbaum and Mor- rison in concluding that “when specific powers have been provided for, the general power should not be used to extend the clear scope of the specific provisions”. (Montréal at para 51) The court held that the City could not rely on their general power to ensure peace, order and good government in the exercise of its regulatory power where there is a specific provision that applies to such power (at para. 54). 77 A review of the case law on this matter has led me to conclude that while powers under the “peace, order and good government” provision in s. 8 of the Act are broad, there are clear limitations to this section’s use. It is not illegal for a municipality to enact a bylaw on subject matter for which provincial legislation exists, provided that there is no conflict between the two pieces of legislation. However, where the enabling statute gives a municipal corporation specific powers in relation to a certain subject matter, the general power cannot be relied upon unless the right to legislate on the matter arises from the powers given. Moreover, the general powers cannot be relied upon if its true purpose is not provided for in s. 8 (i.e. for the peace, order and good government of the municipality). 78 I am satisfied that the Bylaw was not passed to promote the peace, order and good government of the municipality but was passed to protect the interests of the members of council on a personal basis. 79 As I have found that the Bylaw was ultra vires, it is not strictly necessary to deal with the next issue. However, in the event I am wrong on the issue of vires and in order to provide a complete record in the event of appeal, I will go on to consider this issue.

RE: 6. Does the Bylaw illegally delegate authority to the Chief Administrative Officer contrary to ss. 127(o)? 80 The applicants submit that Provisions 4 c. and d. of the Bylaw are illegal in that the delegation of authority to the Chief Administrative Of- Baker v. Sherwood No. 159 (Rural Municipality) E.J. Gunn J. 137

ficer is contrary to the express wording of the Act, the scheme of the Act and the object of the Act. 81 Section 127 provides as follows: 127 No council shall delegate: ... (o) its power to set the remuneration for members of council and for members of council committees and other bodies established by the council pursuant to section 81; ... 82 Other sections of the Act have some relevance. 83 Section 111 outlines the duties of the administrator of the municipality. Subsection (2)(j) states that: 111(2) The administrator shall ensure that: ... (j) the funds of a municipality are disbursed only in the manner and to those persons that are directed by law or by the bylaws or resolutions of the council; ... 84 Section 92 stipulates that councillors have certain duties. These include the duty: 92 . . . (d) to ensure that administrative practices and procedures are in place to implement the decision of counsel; ... (f) to maintain the financial integrity of the municipality; ... 85 Section 159 states that: 159 A municipality may only make an expenditure that is: (a) included in its budget or otherwise authorized by its council; (b) for an emergency; or (c) legally required to be paid. 86 Section 192(1) provides that: 192(1) A member of council who knowingly makes an expenditure that is not authorized pursuant to section 159, or who knowingly makes an investment that is not authorized pursuant to section 160, is liable to the municipality for the expenditure, investment or amount spent, as the case may be. 138 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

87 The issue of delegation within municipal law is governed by the maxim delegatus non potest delegare, translated as “a delegate cannot delegate” (Rogers at 381). In other words, in the absence of express statutory authority, a municipal council cannot assign, to any other individual or agency, any legislative or discretionary power with which it has been vested (Rogers at 381). To determine the validity of a delegation of power by a municipal council, the courts will look for an express grant of authority to delegate (Stanley M. Makuch, Neil Craik & Signe B. Leisk, Canadian Municipal and Planning Law, 2d ed (Toronto: Thomson Cars- well, 2004) at 106). In the absence of this authority, there is a presumption against delegation (Canadian Municipal and Planning Law). 88 The latin maxim that governs this area, however, is not absolute; courts have determined that administrative authority may be delegated (Canadian Municipal and Planning Law at 107). This approach is reflected in a decision of the Supreme Court of Canada, where the court cites with approval: “In Meredith and Wilkinson’s Canadian Municipal Manual at p. 265, it is said “The exercise of a discretionary power vested in a council cannot, in the absence of statutory authority, be delegated. A council may, however, delegate to an officer or functionary merely ministerial matters.” (Vic Restaurant Inc. v. Montreal (City) (1958), [1959] S.C.R. 58 (S.C.C.) at 76-77). 89 This begs the question: what matters are “merely ministerial”? Rogers suggests that “Powers and functions which do not involve the making and determining of policy, such as the issuance of permits upon certain conditions stipulated by by-law, are treated as ministerial and can therefore be delegated. The courts lean towards enlarging the discretion which may be assigned to a subordinate body or official, but are insisting upon council spelling out in by-law the standards governing the exercise of discretion.” [footnotes omitted] (at p. 382). 90 Where the authority being granted by a municipality involves tasks or decisions which do not adjudicate or determine rights, and where the task or decision does not involve the exercise of a great deal of discretion, policy or legislative action on the part of the body receiving the authority, then the delegation has generally been held to be valid. 91 In R. v. Bridge (1952), [1953] 1 S.C.R. 8 (S.C.C.), the Supreme Court of Canada upheld a bylaw that granted an administrative clerk the right to grant extended-hour permits to gas stations as it was within council’s authority to create bylaws on the issuing of permits and the bylaw was of sufficient specificity such that the duties of the clerk were merely admin- Baker v. Sherwood No. 159 (Rural Municipality) E.J. Gunn J. 139

istrative in nature (at p. 12). The court did, however, sever a provision of the bylaw that gave the clerk the power to revoke permits based on the subjective determination that occupiers failed to keep their shops open as authorized. Cartwright J. said the following, at p. 13: ... It is within the powers of the Council to prescribe a state of facts the existence of which shall render an occupier ineligible to receive a permit for a stated time; but express words in the enabling Statute would be necessary to give the Council power to confer on an individual the right to decide, on such evidence as he might find sufficient, whether or not the prescribed state of facts exists and there are no such words. ... 92 In R. v. Joy Oil Co. (1963), 41 D.L.R. (2d) 291 (Ont. C.A.) the court held that a bylaw that required the installation of fire extinguishing equipment as directed by the fire chief was a proper delegation of power; the delegated power was deemed administrative in nature. The bylaw was worded as follows: Every wholesale storage depot, port terminal, and other property, where flammable liquids are stored in bulk storage shall be provided with foam fire-extinguishing equipment and such quantities of foam- producing materials ready for immediate use as may be directed by the Chief of the Fire Department. 93 In R. v. Sandler (1971), 21 D.L.R. (3d) 286 (Ont. C.A.) the court held that the bylaw, included below, was deemed to be an improper delegation of power as it did not contain the standards that municipal council expected to be observed (at p. 289): ... the Chief shall have power: ... (f) to inspect the fire protection equipment in any premises and to make such orders for the installation, repair or replacement of fire protection equipment as he deems necessary; ... 94 It would appear to be clear from the sections of the Act quoted supra and s. 151 quoted earlier that council bears the direct responsibility and authority for financial decisions and expenditures. The CAO must carry out the directions of council but Bylaw 14/17 leaves significant discretion in his hands which is contrary to the scheme of the Act. The CAO, an employee who reports to council, must decide whether the legal fees, costs or damages arose from an action or proceeding; whether the action or proceeding arose from acts or omissions of councillors in the course of their duties; whether the acts or omissions of councillors were done or 140 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

made in good faith with a view to the best interests of the RM; whether the legal fees, costs and/or damages are/were not already covered by the RM’s insurance; and lastly whether the legal fees, costs and/or damages are/were reasonable. 95 I would accordingly find that Bylaw 14/17 illegally delegates authority to the CAO. 96 The application is allowed. The Bylaw is quashed. The applicants will have their costs to be taxed. Application granted. United States of America v. Cavan 141

[Indexed as: United States of America v. Cavan] In the Matter of an application for judicial review pursuant to s. 57 of the Extradition Act, S.C. 1999, c. 18 The Minister of Justice and Attorney General of Canada and The United States of America, Respondents and Han Cavan, Applicant Ontario Court of Appeal Docket: CA C58169 2015 ONCA 664 David Watt, S.E. Pepall, Grant Huscroft JJ.A. Heard: January 30, 2015 Judgment: October 2, 2015 Criminal law –––– Extradition proceedings — Extradition from Canada — Order for surrender –––– Accused was Canadian citizen service sentence in United States prison on conviction for conspiracy to traffic — Under Interna- tional Transfer of Offenders Act, accused became treaty transfer case to Canada, where he was to serve remained of his sentence — Six weeks after his return to Canada, accused was granted accelerated day parole and was subsequently granted accelerated full parole — Accused indicted in United States on alleged conspiracy to distribute and to possess with intent to distribute cocaine and warrant was issued for accused’s arrest — United States requested accused’s extradition to stand trial on indictment — Judge ordered accused’s committal and Minister of Justice ordered accused’s surrender — Accused brought application for judicial review of surrender order — Application dismissed — Minister’s discretionary decision was reasonable and owed deference — Minister did not err in rejecting submission that surrender would have constituted abuse of process or be unjust or oppressive under s. 44(1)(a) of Extradition Act — Minister erred in his statement that bad faith or improper motive were conditions precedent to successful claim of abuse of process, however, in his decision as whole, Minister applied correct test — Minister’s reasons indicated that he considered all relevant factors pertaining to issue before him, including delay, accused’s incarceration and potential prejudice — Minister’s reasons did not impose burden on accused to demonstrate that more timely initiation of extradition proceedings would have resulted in accused’s earlier release. Cases considered by David Watt J.A.: Canada (Attorney General) v. Barnaby (2015), 2015 SCC 31, 2015 CSC 31, 2015 CarswellQue 3758, 2015 CarswellQue 3759, [2015] S.C.J. No. 102, 142 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

[2015] A.C.S. No. 102, 471 N.R. 190, 323 C.C.C. (3d) 185, 387 D.L.R. (4th) 1 (S.C.C.) — referred to Canada (Minister of Citizenship & Immigration) v. Tobiass (1997), 1997 Car- swellNat 1385, 1997 CarswellNat 1386, 118 C.C.C. (3d) 443, 151 D.L.R. (4th) 119, 10 C.R. (5th) 163, [1997] S.C.J. No. 82, 131 F.T.R. 230 (note), [1997] 3 S.C.R. 391, 40 Imm. L.R. (2d) 23, 14 C.P.C. (4th) 1, 1 Admin. L.R. (3d) 1, 218 N.R. 81, REJB 1997-02452 (S.C.C.) — referred to Canada (Minister of Justice) v. Fischbacher (2009), 2009 SCC 46, 2009 Cars- wellOnt 6153, 2009 CarswellOnt 6154, 69 C.R. (6th) 21, (sub nom. Fischbacher v. Canada (Minister of Justice)) 248 C.C.C. (3d) 419, 394 N.R. 139, 255 O.A.C. 288, 312 D.L.R. (4th) 1, 198 C.R.R. (2d) 168, [2009] 3 S.C.R. 170, [2009] S.C.J. No. 46, [2009] A.C.S. No. 46 (S.C.C.) — referred to Canada (Minister of Justice) v. Hanson (2005), 2005 BCCA 77, 2005 Car- swellBC 291, 25 Admin. L.R. (4th) 37, (sub nom. Hanson v. Canada (Minister of Justice)) 195 C.C.C. (3d) 46, 209 B.C.A.C. 113, 345 W.A.C. 113 (B.C. C.A.) — referred to Németh c. Canada (Ministre de la Justice) (2010), 2010 SCC 56, 2010 Car- swellQue 11954, 2010 CarswellQue 11955, [2010] S.C.J. No. 56, 91 Imm. L.R. (3d) 165, 11 Admin. L.R. (5th) 159, (sub nom. Németh v. Canada (Minister of Justice)) 408 N.R. 198, (sub nom. Németh v. Canada (Minister of Justice)) 263 C.C.C. (3d) 434, (sub nom. Németh v. Canada (Minister of Justice)) [2010] 3 S.C.R. 281, (sub nom. Nemeth v. Canada (Minister of Jus- tice)) 328 D.L.R. (4th) 431, (sub nom. Németh v. Canada (Minister of Jus- tice)) 221 C.R.R. (2d) 6, 5 A.L.R. Int’l 801 (S.C.C.) — referred to R. c. Piccirilli (2014), 2014 SCC 16, 2014 CarswellQue 575, 2014 CarswellQue 576, [2014] S.C.J. No. 16, 367 D.L.R. (4th) 575, (sub nom. R. v. Babos) 8 C.R. (7th) 1, (sub nom. R. v. Babos) 454 N.R. 86, 308 C.C.C. (3d) 445, 2014 CSC 16, (sub nom. R. v. Babos) [2014] 1 S.C.R. 309, (sub nom. R. v. Babos) 300 C.R.R. (2d) 153 (S.C.C.) — referred to R. v. Conway (1989), [1989] 1 S.C.R. 1659, 96 N.R. 241, 34 O.A.C. 165, 49 C.C.C. (3d) 289, 70 C.R. (3d) 209, 40 C.R.R. 1, 1989 CarswellOnt 94, 1989 CarswellOnt 962, EYB 1989-67460, [1989] S.C.J. No. 70 (S.C.C.) — referred to R. v. Nixon (2011), 2011 SCC 34, 2011 CarswellAlta 988, 2011 CarswellAlta 989, [2011] S.C.J. No. 34, 41 Alta. L.R. (5th) 221, [2011] 7 W.W.R. 429, 13 M.V.R. (6th) 1, 417 N.R. 274, 85 C.R. (6th) 1, 271 C.C.C. (3d) 36, 502 A.R. 18, 517 W.A.C. 18, 335 D.L.R. (4th) 565, 237 C.R.R. (2d) 333, [2011] 2 S.C.R. 566 (S.C.C.) — referred to R. v. O’Connor (1995), [1996] 2 W.W.R. 153, [1995] 4 S.C.R. 411, 44 C.R. (4th) 1, 103 C.C.C. (3d) 1, 130 D.L.R. (4th) 235, 191 N.R. 1, 68 B.C.A.C. 1, 112 W.A.C. 1, 33 C.R.R. (2d) 1, 1995 CarswellBC 1098, 1995 CarswellBC 1151, [1995] S.C.J. No. 98, EYB 1995-67073 (S.C.C.) — referred to United States of America v. Cavan 143

R. v. Regan (2002), 2002 SCC 12, 2002 CarswellNS 61, 2002 CarswellNS 62, 161 C.C.C. (3d) 97, 209 D.L.R. (4th) 41, 282 N.R. 1, 49 C.R. (5th) 1, [2002] S.C.J. No. 14, 201 N.S.R. (2d) 63, 629 A.P.R. 63, 91 C.R.R. (2d) 51, [2002] 1 S.C.R. 297, REJB 2002-27926 (S.C.C.) — referred to R. v. Schmidt (1987), 76 N.R. 12, (sub nom. Canada v. Schmidt) [1987] 1 S.C.R. 500, 39 D.L.R. (4th) 18, 20 O.A.C. 161, 33 C.C.C. (3d) 193, (sub nom. Schmidt v. R.) 58 C.R. (3d) 1, (sub nom. Schmidt v. Canada) 28 C.R.R. 280, 61 O.R. (2d) 530, 1987 CarswellOnt 95, 1987 CarswellOnt 961, EYB 1987- 67458 (S.C.C.) — considered United States v. Allard (1987), [1987] 1 S.C.R. 564, 40 D.L.R. (4th) 102, 75 N.R. 260, 8 Q.A.C. 178, 33 C.C.C. (3d) 501, 28 C.R.R. 253, 1987 Carswell- Que 104, 1987 CarswellQue 104F, EYB 1987-67760 (S.C.C.) — referred to United States v. Bonamie (2001), 2001 ABCA 267, 2001 CarswellAlta 1404, [2002] 1 W.W.R. 247, 96 Alta. L.R. (3d) 252, (sub nom. Bonamie, Re) 293 A.R. 201, (sub nom. Bonamie, Re) 257 W.A.C. 201, 90 C.R.R. (2d) 269, [2001] A.J. No. 1334 (Alta. C.A.) — referred to United States v. Cobb (2001), 2001 SCC 19, 2001 CarswellOnt 964, 2001 Cars- wellOnt 965, [2001] S.C.J. No. 20, 152 C.C.C. (3d) 270, 197 D.L.R. (4th) 46, 41 C.R. (5th) 81, 267 N.R. 203, 145 O.A.C. 3, [2001] 1 S.C.R. 587, 81 C.R.R. (2d) 226, REJB 2001-23417 (S.C.C.) — referred to United States v. Johnson (2002), 2002 CarswellOnt 4232, [2002] O.J. No. 4759, 170 C.C.C. (3d) 538, 62 O.R. (3d) 327, 166 O.A.C. 345, 50 Admin. L.R. (3d) 146 (Ont. C.A.) — referred to United States v. Lake (2008), 2008 SCC 23, 2008 CarswellOnt 2574, 2008 Cars- wellOnt 2575, 230 C.C.C. (3d) 449, (sub nom. Lake v. Canada (Minister of Justice)) 373 N.R. 339, (sub nom. United States of America v. Lake) 292 D.L.R. (4th) 193, 56 C.R. (6th) 336, 72 Admin. L.R. (4th) 30, [2008] S.C.J. No. 23, (sub nom. Lake v. Canada (Minister of Justice)) 236 O.A.C. 371, (sub nom. Lake v. Canada (Minister of Justice)) [2008] 1 S.C.R. 761, (sub nom. Lake v. Canada (Minister of Justice)) 171 C.R.R. (2d) 280 (S.C.C.) — referred to United States v. Magnifico (2007), 2007 CarswellOnt 4691, (sub nom. United States of America v. Magnifico) 223 C.C.C. (3d) 129, (sub nom. United States of America v. Magnifico) 227 O.A.C. 64, 2007 ONCA 535, (sub nom. United States of America v. Magnifico) 159 C.R.R. (2d) 315 (Ont. C.A.) — referred to Statutes considered by David Watt J.A.: 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. 7 — considered s. 11(b) — considered 144 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

Extradition Act, S.C. 1999, c. 18 Generally — referred to s. 15 — considered s. 40(1) — considered s. 44 — considered s. 44(1)(a) — considered s. 57(1) — considered s. 64(1) — considered s. 66 — considered s. 66(1) — considered International Transfer of Offenders Act, S.C. 2004, c. 21 Generally — referred to Treaties considered by David Watt J.A.: Canada-United States Extradition Treaty, 1971, C.T.S. 1976/3; 57 U.N.T.S. 1041; T.I.A.S. No. 8237 Generally — referred to

APPLICATION by accused for judicial review of decision of Minister of Justice ordering accused’s surrender to United States of America following order for committal.

John Norris, Meara Conway, for Appellant Nancy Dennison, for Respondents

David Watt J.A.:

1 Those who persist in their pursuits have mixed results. Some succeed. Others fail. 2 Han Cavan persisted in his pursuit of cocaine in the United States for sale in Canada. Twice he tried. And twice he failed. The reasons he failed differed. But the result was the same. No drugs. And no money. 3 Han Cavan’s troubles were not over. United States authorities wanted to prosecute him for his alleged involvement in those failed drug transac- tions. And they wanted Canada’s help to pursue the prosecution by returning Cavan to the United States for trial. 4 Han Cavan agreed that the United States authorities had made out a case for his committal for surrender. A judge ordered his committal. The Minister of Justice ordered Cavan’s surrender. 5 Han Cavan does not contest the committal order. But he contends that the surrender order is fatally flawed by legal errors the Minister made in United States of America v. Cavan David Watt J.A. 145

his decision. These reasons explain why I have concluded that, in this pursuit, Han Cavan fails again.

The Background Facts 6 A brief tour through the nature of the allegations and the history of the proceedings is essential to an understanding of the claims of error advanced here.

The Original Conviction 7 The story begins in Minneapolis, Minnesota, on November 20, 2006, when Han Cavan was sentenced to imprisonment for 8 years, 8 months and 8 days on a conviction for conspiracy to traffic in nearly 30,000 ec- stasy pills. 8 Han Cavan is a Canadian citizen. When convicted and sentenced in Minneapolis, Cavan was living and had a business in the United States. He began serving his sentence in a U.S. prison.

The Transfer to Canada 9 On May 9, 2008, under the International Transfer of Offenders Act, S.C. 2004, c. 21 and governing treaty, Cavan became a treaty transfer case to Canada. He arrived in Canada on June 26, 2008 to serve the remainder of his sentence.

Accelerated Day Parole 10 About six weeks after his return to Canada, Han Cavan was granted accelerated day parole. He was to reside at a Salvation Army residence in Kitchener while subject to the conditions of his day parole.

The First Plan 11 United States authorities allege that, during the summer of 2008, Han Cavan telephoned an individual in the United States in search of kilogram quantities of cocaine. The person whom Cavan called was a brother of a man with whom Cavan had been in jail in the United States. Un- known to Cavan, however, the man was also a paid confidential source who worked with the Drug Enforcement Agency (“the DEA”). 12 The communications between Cavan and the DEA source continued into the fall of 2008 and included visits to New York City by Jo Van Lo, one of Cavan’s associates, to settle the details of the transaction: 17 kilograms of cocaine for $27,000 per kilogram. The money, about $458,000, 146 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

was to be transported to the United States in a secret compartment in a sports utility vehicle and exchanged for the cocaine, which was to be transported back to Canada in the same compartment of the same vehicle. 13 The plan failed. Customs and Border Protection agents stopped the vehicle at the Peace Bridge, searched it and found $458,000 in the hidden compartment. The driver of the vehicle, William Hicks, explained the scheme in a post-arrest statement to United States authorities.

Accelerated Full Parole 14 On October 2, 2009 the Parole Board of Canada (“PBC”) granted Han Cavan accelerated full parole. He was required to live at a designated address in Kitchener and be supervised by the Guelph Parole Office.

The Second Plan 15 According to United States authorities, Cavan continued to call the DEA source about the purchase of kilogram amounts of cocaine in 2009. The parties settled on a proposed exchange of 10 kilograms of cocaine for $25,000 per kilogram. Delivery of the drugs to Cavan’s associate, John Mawhinney, did not proceed in accordance with the original plan. A new plan was formulated. The transfer was to take place in Tona- wanda, New York. 16 In Tonawanda, Mawhinney was given a sample of the cocaine by an undercover law enforcement agent. Mawhinney then produced a duffle bag containing the purchase price and a transportation fee of $500 per kilogram. When Mawhinney turned over the money to the DEA source, DEA agents arrested Mawhinney.

The United States Indictment 17 On November 19, 2009, two days after Mawhinney was arrested in Tonawanda, New York, a Grand Jury in the Southern District of New York returned a true bill of indictment against Mawhinney, Adam Kaup (who was with Mawhinney in Tonawanda), Cavan, Lo and Hicks. 18 The indictment alleged a conspiracy from at least November 2008 until November 17, 2009 to distribute and to possess with intent to distribute cocaine. Arrest warrants were issued the same day. United States of America v. Cavan David Watt J.A. 147

Suspension and Revocation of Parole 19 Within a week of the Grand Jury indictment, a warrant suspending Cavan’s parole was issued. The warrant was executed the next day when Cavan attended a scheduled supervision interview. 20 About two and one-half months after Cavan’s parole was suspended, the PBC revoked his parole on the basis that he was involved in the commission of a new criminal offence and had breached a specific non-association condition of his parole. Cavan was recommitted to custody with a warrant expiry date of July 27, 2015. He has not taken any steps to review the suspension or cancellation of his parole. 21 The only new criminal involvement described in the materials provided to parole authorities was the charges contained in the U.S. indictment.

The Extradition Request 22 By diplomatic note on September 14, 2012 the United States requested the extradition of Cavan, Lo and Hicks to stand trial on the indictment in the United States District Court for the Southern District of New York.

The Authority to Proceed 23 About three months later, on December 13, 2012, counsel with the International Assistance Group issued an Authority to Proceed under s. 15 of the Extradition Act, S.C. 1999, c. 18 (“the Act”). The Attorney General of Canada was authorized to proceed before the Superior Court of Justice and seek orders of committal for Cavan, Lo and Hicks. The corresponding Canadian offence listed in the Authority to Proceed is conspiracy to traffic in a Schedule I controlled substance.

The Arrest of Han Cavan 24 Han Cavan was arrested on March 1, 2013, about three years after his parole had been revoked and about 28 months before his warrant expiry date. The arrest occurred about three years and four months after the Grand Jury returned a true bill of indictment in the Southern District of New York. 148 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

The Committal Hearing 25 On June 7, 2013 Han Cavan consented to his committal for surrender to United States authorities. A judge of the Superior Court of Justice ordered his committal.

The Surrender Proceedings 26 Counsel for Han Cavan sought and obtained further information from officials in the International Assistance Group in order to make submissions to the Minister about surrender. 27 On December 12, 2013 the Minister informed counsel for Cavan that he (the Minister) was ordering Cavan’s surrender for extradition to the United States.

The Grounds for Review 28 Han Cavan invokes s. 57(1) of the Extradition Act to seek judicial review of the surrender order made by the Minister. He contends that the surrender order is unsupportable because the Minister made several errors in failing to find that surrender would not infringe Cavan’s s. 7 Charter rights or would not be unjust or oppressive under s. 44(1)(a) of the Extradition Act. 29 I would reframe these alleged errors as follows: i. The Minister erred in law by applying the wrong test and confining abuse of process to cases of bad faith and improper motive and thereby imposing an erroneously high standard on the exercise of his discretion to refuse to order surrender; ii. by limiting prejudice to the impact of delay on the extradition hearing; and iii. by unfairly imposing a burden on the applicant to show that an earlier extradition request would have resulted in his earlier release from custody. 30 I will consider each component of the overarching submission of unreasonableness separately.

Ground #1: The Abuse of Process Argument 31 The first complaint advanced by Cavan is that the Minister applied the wrong test and imposed too rigorous a standard in responding to the submission that to surrender him (Cavan) would constitute an abuse of process. United States of America v. Cavan David Watt J.A. 149

32 To determine the validity of this complaint, it is helpful to begin with a reference to the Minister’s reasons on the issue before reviewing the positions of the parties and the principles that govern our decision on this issue.

The Reasons of the Minister 33 The Minister characterized this submission of counsel as an argument that surrender would be “unjust and oppressive” within s. 44 of the Act and an unjustifiable infringement of the applicant’s s. 7 Charter rights. After noting that the arguments about delay by foreign authorities were analyzed as claims of abuse of process, the Minister described his understanding of the applicant’s burden to establish an abuse of process in these terms: To find an abuse of process, there must be evidence of bad faith or improper motive on the part of the foreign authorities. As stated by the Supreme Court of Canada, such a finding will be “extremely rare” and must only be made in the “clearest of cases” (United States of America v. Cobb, [2001] 1 S.C.R. 587; R. v. Power, supra). Addi- tionally, it must be shown that the delay resulted in actual prejudice of such magnitude that the public’s sense of decency and fairness is affected (Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307). 34 After a brief recital of the events that occurred from the Grand Jury indictment of the applicant and the others until the making of the extradition request the Minister wrote: Your submissions are to the effect that the delay caused Mr. Cavan to be re-incarcerated for at least three years as a result of his parole having been suspended and revoked by order of the Parole Board of Canada (PBC). However, you have not presented any evidence to suggest that the U.S. authorities were involved in the parole suspension or revocation proceedings in Canada, other than to provide information to Canadian authorities. In particular, your materials indicate that the DEA provided information to Canadian officials concerning Mr. Cavan’s alleged involvement in cocaine trafficking while on parole. The U.S. authorities also provided updates at the request of Canadian officials on the status of their extradition request. Your materials reveal that Mr. Cavan’s parole was not only revoked by the PBC because of information suggesting his involvement in drug trafficking but also because he violated a condition of his parole not to associate with a certain individual or individuals. Moreover, 150 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

the delay in seeking Mr. Cavan’s extradition did not bring about the parole suspension; it was Mr. Cavan’s alleged conduct itself. 35 After a brief reference to the conduct of Canadian authorities and the complaint that those authorities did nothing to advance the extradition process, the Minister wrote: I am satisfied that the three-year delay in this case (from the date of Mr. Cavan’s arrest on November 26, 2009, to the request for his extradition on September 14, 2012, and which was perfected when the ROC was certified on December 3, 2012) was not as a result of bad faith, or for an improper motive. Therefore, there is no basis to conclude that the conduct of Canadian or American authorities was abusive. 36 A few paragraphs later, the Minister expressed his conclusion on the applicant’s submission about delay and abuse of process. In conclusion, it has not been established that the delay in this case amounts to an abuse of process or that Mr. Cavan’s surrender under the circumstances would be “shocking to the conscience” of Canadi- ans, be “simply unacceptable” or contrary to the principles of fundamental justice. Accordingly, I am of the view that Mr. Cavan’s surrender cannot be denied on the basis of delay.

The Arguments on Review 37 The applicant says that the doctrine of abuse of process is not limited to cases of bad faith or improper motive on the part of state authorities. To be certain, bad faith or improper motive are relevant considerations in the abuse of process analysis, but not conditions precedent to a successful claim. It follows, the applicant continues, that he was under no obligation to make out a case of either and the Minister was wrong in requiring him to do so. 38 The applicant contends that the doctrine of abuse of process protects the repute of the administration of justice. It has nothing to do with the merits of the state’s case either for extradition or at trial in the requesting jurisdiction. The doctrine is flexible and subsumed under s. 7 of the Charter. To subject the applicant to surrender in light of the delay in the extradition partner’s pursuit of extradition after the alleged offence and Grand Jury indictment would offend the community’s sense of fair play and decency, amount to an abuse of process and offend the principles of fundamental justice. The emphasis placed on the requirement of “shock- United States of America v. Cavan David Watt J.A. 151

ing the conscience” or being “simply unacceptable” obscured the test the Minister should have applied in making his surrender decision. 39 The respondents begin with a reminder about the standard of review we are to apply. The standard is reasonableness, a benchmark that posits a range of possible outcomes, not a single, exclusive response. In this case, the respondents say, the Minister considered the relevant facts and reached a conclusion that falls within the range of supportable outcomes. 40 The respondents contend that the applicant’s argument about abuse of process rests exclusively on a claim of unreasonable or undue delay in the initiation of extradition proceedings. Unlike in domestic proceedings to which s. 11(b) of the Charter would apply, the delay here must take cognizance of the international nature of these proceedings. To make out a claim of abuse of process based on delay, the applicant must invoke the residual category of abuse of process. The authorities make it clear that in the residual category, stays for abuse of process are extremely rare and granted in only the clearest of cases where no other remedy is capable of eradicating the prejudice. This case does not ascend to that level.

The Governing Principles 41 The combined effect of several principles assists in the determination of this ground of appeal. Some describe the standard of review of a surrender decision. Others define the scope of the doctrine of abuse of process. Still others interpret the duty of the Minister under s. 44(1)(a) of the Extradition Act. And others describe the extent to which, if at all, Cana- dian authorities can direct the manner in which our extradition partners carry out their investigation of offences and pursuit of extradition proceedings.

The Surrender Decision 42 After committal, an extradition request reverts to the Minister who reviews the case in its entirety and determines whether, and if so on what basis, to order the surrender of the person sought. This requires the Min- ister to determine whether it is politically appropriate and not fundamentally unjust for Canada to extradite the person the extradition partner seeks: Extradition Act, s. 40(1); Canada (Minister of Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170 (S.C.C.), at para. 36. 43 The Minister’s authority to order or refuse surrender is subject to the provisions of the Act and Treaty. The Minister must exercise his authority in conformity with the Charter: Fischbacher, at para. 36. 152 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

44 Several provisions of the Act, under the sub-heading Reasons for Re- fusal, circumscribe the Minister’s surrender power in s. 40(1). Some provisions are mandatory, barring surrender in defined circumstances. Others are discretionary, permitting but not requiring refusal in other circumstances. 45 Under s. 44(1)(a), the Minister must refuse to order surrender if the Minister is satisfied that the surrender would be unjust or oppressive having regard to all the relevant circumstances. Under this provision, the Minister must consider all relevant circumstances, each on its own and together with the rest, to determine whether surrender would be unjust or oppressive: Fischbacher, at para. 37; United States v. Johnson (2002), 62 O.R. (3d) 327 (Ont. C.A.), at para. 45. Inclusion of the term “satisfied” in s. 44(1)(a) reposes a discretion in the Minister: Fischbacher, at para. 37. 46 To make a surrender decision, the Minister must undertake a balancing of all the relevant circumstances, weighing factors that militate in favour of surrender, on the one hand, against those that advocate against surrender, on the other. The “relevant” circumstances will vary, of course, from one case to the next. Included within the broad embrace of “relevant” may be: i. any representations (on the issue of surrender) made on behalf of the person sought; ii. the conduct of the proceedings in the requesting state before and after the extradition request; iii. the potential punishment on conviction in the requesting state; iv. the personal circumstances of the person sought; v. the timeliness and manner of prosecuting the extradition proceedings in Canada; and vi. the need to respect the constitutional rights of the person sought and Canada’s international obligations under the Treaty and as a responsible member of the international community: see Fischbacher, at para. 38; United States v. Bonamie, 2001 ABCA 267, 293 A.R. 201 (Alta. C.A.), at para. 54; United States v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587 (S.C.C.), at para. 34. 47 Section 44(1)(a) entitles the Minister to refuse surrender in the absence of a Charter breach, provided the Minister is satisfied that surrender would be unjust or oppressive in all the relevant circumstances. A Charter breach may not be alleged. Or alleged, but not established. De- United States of America v. Cavan David Watt J.A. 153

spite the constitutionality of surrender, the Minister may refuse surrender if surrender would be unjust or oppressive in all the circumstances. 48 The exercise of the Minister’s power of surrender implicates the liberty and, in some cases, the security of the person sought. As a result, the Minister owes a duty of fairness both at common law and in accordance with the principles of fundamental justice under s. 7 of the Charter: N´emeth c. Canada (Ministre de la Justice), 2010 SCC 56, [2010] 3 S.C.R. 281 (S.C.C.), at para. 70. 49 Under s. 44(1)(a), the Minister must have a wide measure of appreciation of what circumstances are “unjust or oppressive”. The burden of demonstrating that “unjust or oppressive” circumstances exist falls upon the person sought: Fischbacher, at para. 37; Nemeth, at para. 72; United States v. Lake, 2008 SCC 23, [2008] 1 S.C.R. 761 (S.C.C.), at paras. 38- 39.

Supervision of Proceedings in Foreign Jurisdictions 50 Actions undertaken by the Government of Canada in extradition proceedings are subject to Charter scrutiny. But the Charter does not govern the actions of the extradition partner. The Charter does not operate extra- territorially to superintend the manner in which offences alleged to have been committed in a foreign jurisdiction are investigated and prosecuted: R. v. Schmidt, [1987] 1 S.C.R. 500 (S.C.C.), at p. 518.

Abuse of Process and the Principles of Fundamental Justice 51 In domestic proceedings, we recognize two categories of abuse of process. Each would also be captured by s. 7 of the Charter. Each is rooted in state conduct. The main category encompasses state conduct that affects the fairness of the trial. The residual category takes in state conduct that contravenes fundamental notions of justice and thus under- mines the integrity of the judicial process: R. v. O’Connor, [1995] 4 S.C.R. 411 (S.C.C.), at para. 73; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566 (S.C.C.), at para. 36; R. c. Piccirilli, 2014 SCC 16, [2014] 1 S.C.R. 309 (S.C.C.), at para. 31. 52 Abuse of process does not require evidence of bad faith or an improper motive on the part of the foreign authorities. It also captures conduct that falls short of bad faith but still risks undermining the integrity of the justice system: Canada (Attorney General) v. Barnaby, 2015 SCC 31, 323 C.C.C. (3d) 185 (S.C.C.), at para. 10; Babos, at paras. 36-37. 154 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

53 The test used to determine whether a stay of proceedings is warranted in domestic cases under either category comprises three requirements: i. prejudice to an accused’s right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial or its outcome; ii. no alternative remedy capable of redressing the prejudice; and iii. in the event of uncertainty after completion of steps i and ii, a balancing of interests in favour of the stay against the interest society has in having a final decision on the merits: see Babos, at para. 32. See also R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 (S.C.C.), at paras. 54 and 57. 54 In the residual category, prejudice to an accused’s interests is relevant, but not determinative. In most cases an accused will have to demonstrate that the state conduct prejudiced him or her in some significant way in order to make out a case for abuse of process. But the prejudice component is better conceptualized as an act tending to undermine society’s expectations of fairness in the administration of justice: Nixon, at para. 41. The question is whether the state’s interest is offensive to society’s notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. State conduct that exceeds society’s tolerance harms the integrity of the justice system: Babos, at para. 35. 55 The balancing stage of the test, which need only be undertaken when uncertainty remains after completion of the first two stages, assumes added importance under the residual category: Babos, at para. 41. The question there is which of two options better protects the integrity of the system: staying the proceedings or having a trial despite the impugned conduct: Babos, at para. 41. 56 At the root of each category of abuse of process rests state conduct. Where the state conduct implicates the fairness of trial proceedings, the main category applies. The concern is whether there is ongoing unfairness to the accused: Babos, at para. 34. In the residual category, the conduct does not implicate the fairness of trial proceedings, rather its condo- nation would tarnish the integrity of the court: Nixon, at para. 41. 57 In either category, stays of proceedings for abuse of process are limited to the clearest of cases: Babos, at para. 31; O’Connor, at para. 68. The balancing of societal interests that must take place and the “clearest of cases” threshold present a claimant who seeks a stay under the United States of America v. Cavan David Watt J.A. 155

residual category with an onerous burden. Cases warranting a stay in the residual category will be “exceptional” and “very rare”: Babos, at para. 44; Canada (Minister of Citizenship & Immigration) v. Tobiass, [1997] 3 S.C.R. 391 (S.C.C.), at para. 91. It is only where the “affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases” that a stay will be warranted: Babos, at para. 44; R. v. Conway, [1989] 1 S.C.R. 1659 (S.C.C.), at p. 1667.

The Standard of Review 58 On review, provided the Minister applies the correct legal test and does not otherwise err in law or contravene principles of natural justice, deference is owed to the Minister’s decision on surrender: see Lake, at para. 34, 41; United States v. Magnifico, 2007 ONCA 535, 223 C.C.C. (3d) 129 (Ont. C.A.), at para. 26. The standard of review for the Min- ister’s decision is reasonableness even where the person sought contends that extradition would offend his or her rights under the Charter: Lake, at para. 34. Interference with the Minister’s decision is limited to exceptional cases of “real substance”: Schmidt, at p. 523; Lake, at para. 34. 59 The standard of reasonableness does not command that reviewing courts be blindly submissive to the Minister’s assessment. That said, the standard does entail more than one possible conclusion. Our role is not to reassess the relevant factors and substitute our own view for that of the Minister. What we must decide is whether the Minister’s decision falls within a range of reasonable alternatives. We must ask ourselves: Did the Minister consider the relevant facts and reach a defensible conclusion based on those facts? Provided the Minister has identified the proper test, his conclusion should be upheld unless it is unreasonable, that is to say, falls outside the range of reasonable outcomes: Lake, at para. 41.

The Principles Applied 60 The applicant alleges error in the test the Minister applied in rejecting the submission that surrender would constitute an abuse of process or be unjust or oppressive within s. 44(1)(a) of the Extradition Act. I would not give effect to this ground of appeal. 61 The standard of review in this case is reasonableness. The applicant is correct to say that the Minister erred in his statement that bad faith or improper motive are conditions precedent to a successful claim of abuse 156 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

of process; however, reading his decision as a whole, the Minister applied the correct test. 62 The Minister’s reasons indicate that he considered all of the relevant factors pertaining to the issue before him, including the delay, Cavan’s re-incarceration and any potential prejudice. In addition, as the applicant put the bona fides of the requesting state in issue, it was appropriate for the Minister to consider whether the request for extradition was made in good faith or for some colourable purpose. 63 In any event, the standard to be met to establish an abuse of process — a showing that the state conduct risks undermining the extradition process — is so far removed from what occurred here as to make the error of no consequence to the result. 64 In reviewing the Minister’s surrender decision on a standard of reasonableness, I proceed from a standard of deference owing to the discretionary nature of the decision, the superior expertise of the Minister and his obligation to ensure that Canada complies with its international obligations. His decision is principally an exercise of executive discretion, essentially political in nature, and at the extreme legislative end of the continuum of administrative decision-making. 65 Further, I am mindful of the admonition that interference with the Minister’s decision on surrender is to be limited to exceptional cases of “real substance”. 66 Two reasons persuade me that the Minister’s decision to reject the applicant’s claims that an order of surrender would be an abuse of process or unjust or oppressive falls within a range of reasonable outcomes and accordingly is not unreasonable. 67 First, the applicant’s invocation of the residual category of abuse of process requires a showing that the state conduct risks undermining the integrity of the extradition process. Such a showing would require evidence of conduct that is offensive to societal notions of fair play and decency. Cases warranting a stay of proceedings, and thus a refusal of surrender, on this ground are exceptional and rare. Nothing that occurred here amounts to an affront to fair play and decency that is disproportionate to the societal interest in the effective discharge of our international obligations to those accused of serious crimes in the jurisdiction of our extradition partner. 68 Second, the claim of abuse of process, injustice or oppression ultimately reduces to a submission of undue delay in the initiation of extra- United States of America v. Cavan David Watt J.A. 157

dition proceedings. A complaint of this kind comes uncomfortably close to an attempt to impose our standards on the timeliness of trial proceedings on foreign authorities or at least to gauge their conduct by such a standard. And this we cannot do. Not directly. And not indirectly. 69 The Minister made an inquiry about the time that had elapsed from indictment to the initiation of extradition proceedings. He received a response, on its face reasonable — the accused persons had been indicted two days after the investigation concluded, and additional information in support of the charges had been gathered. The involvement of two different jurisdictions in the extradition of one of Cavan’s co-defendants had required consultation and coordination. It was not unreasonable for the Minister to accept this response.

Ground #2: Alleged Error in Assessment of Prejudice 70 The second ground on which the applicant argues the Minister’s surrender decision was unreasonable has to do with the Minister’s assessment of prejudice attributable to the delay in initiation of the extradition proceedings by the U.S. authorities. The error alleged is twofold. First, the Minister limited his assessment of prejudice to the impact of delay on the extradition hearing. And second, he failed to consider the prejudice caused to the applicant by the communication of information about the outstanding charges in the United States to Canadian authorities and its impact on the suspension and cancellation of the applicant’s parole and his incarceration to serve the balance of his sentence.

The Reasons of the Minister 71 In addition to the passages of the Minister’s letter to counsel cited in paras. 34 and 35 of this judgment, the following passage is relevant to this ground: I have considered whether Mr. Cavan has been prejudiced by the delay. The Supreme Court of Canada has determined that only delay which impairs the ability of the person sought to adequately prepare for an extradition hearing is relevant to my decision on surrender. You have not provided me with any evidence to suggest that Mr. Cavan’s ability to defend himself in the Canadian extradition proceedings has been prejudiced by delay. Any other delay, and in particular delay which impacts on the ability of the defendant to present a full answer and defence, should be addressed at trial in the foreign state (United States v. Allard, [1987] 1 S.C.R. 564 (S.C.C.)). 158 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

The Arguments on Review 72 The applicant contends that the Minister wrongly restricted his consideration of prejudice to the impact of delay on the conduct of the extradition hearing. In doing so, the applicant says, the Minister wrongly con- flated the jurisdiction of the extradition judge at the committal hearing with his own authority on surrender. The Minister is not required to find a nexus between the conduct alleged to constitute an abuse of process and the committal hearing in order to refuse surrender. The Minister’s authority under s. 44(1)(a) of the Act is more expansive and not limited to or dependent upon a finding that the delay impaired the applicant’s ability to prepare for the extradition hearing. 73 In addition, the applicant says, the Minister took an unreasonably narrow view of prejudice in connection with the impact of the extradition partner’s conduct on the parole revocation proceedings. The suspension, later revocation, of the applicant’s parole was based largely on information supplied by the DEA about the outstanding U.S. proceedings. The result was that the applicant was reincarcerated until his warrant expiry date. Having provided the information to Canadian authorities, the applicant submits, the United States was obliged to move expeditiously with the extradition proceedings. Its failure to do so should have resulted in refusal of surrender. 74 The respondents disclaim any nexus amounting to an abuse of process between the extradition proceedings and the decision of PBC to suspend, then revoke, the applicant’s parole. 75 The respondents say neither the initiation nor the timing of extradition proceedings were of any moment to the authority or decision of the PBC to suspend and later revoke the applicant’s parole. The PBC exercises an inquisitorial function. It can rely on a wide variety of information from domestic and foreign sources to carry out its mandate. The range of material on which the Board can rely includes information in- dicative of a return to criminal activity whether charged, proven, stayed, withdrawn or dismissed. The extradition partner had no status before the Board. The applicant had the right to appeal or judicially review to Board’s decision but chose not to do so. 76 The respondents point out that the delay in instituting extradition proceedings had no impact on the period the applicant would spend in custody. Once parole had been revoked, subject to his right to re-apply or review the revocation decision, the applicant would remain in custody until his warrant expiry date with or without any extradition proceedings. United States of America v. Cavan David Watt J.A. 159

The Governing Principles 77 In addition to the principles already canvassed and in no need of repetition, it is helpful to add a brief reference to the relationship between the domestic proceedings before the PBC and the impact of parole revocation on surrender for extradition. 78 Whether a prisoner serving a penitentiary sentence in Canada will receive parole and, if so, when and on what basis is determined by the PBC. It is of no moment to eligibility whether the sentence being served is for a domestic crime or for an offence committed elsewhere and served here under the International Transfer of Offenders Act. The Board is not a court. It is not bound by the traditional rules of evidence, but rather may act on information that would not be admissible in criminal trial proceedings. 79 Nothing disentitles the PBC from acting on information gathered in a foreign jurisdiction. That said, foreign law enforcement authorities have no standing before the Board. Whether the foreign information is con- veyed to the Board depends on domestic authorities. The use, if any, the Board makes of the information is determined by the Board in the exercise of its discretion. 80 Section 64(1) of the Extradition Act governs cases in which a surrender order is made in respect of a person who was serving a sentence in Canada after conviction of an offence. The general rule enacted by this section is that the surrender order does not take effect until the person has been discharged from custody. It is of no moment whether the discharge is the result of an acquittal, the expiry of the sentence, or some other reason. The timing of the extradition proceedings would seem of no consequence to the prisoner’s surrender, absent a contrary order by the Minister: Canada (Minister of Justice) v. Hanson, 2005 BCCA 77 (B.C. C.A.), at para. 12. 81 The rule of no surrender until discharge is not unyielding. Section 64(1) expressly authorizes the Minister to order otherwise. And s. 66(1) permits the Minister to make an order of temporary surrender to the extradition partner.

The Principles Applied 82 I would reject the applicant’s claim that the surrender decision is unreasonable because the Minister erred in his assessment of prejudice when considering whether to refuse surrender under s. 44(1)(a) of the Act. 160 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

83 The decision of the Minister under s. 44(1)(a) of the Act is essentially an exercise of discretion. This arises from the use of the term “satisfied” and despite the mandatory “shall refuse” in the introductory words of the subsection. The subsection contains no exhaustive or illustrative list of factors for the Minister to consider, but rather envisages an assessment of all the circumstances and a balancing of those factors that favour surrender and those that counsel otherwise. Decisions that involve the exercise of discretion are notoriously the subject of deference on review. 84 Second, the fact that the extradition proceedings were outstanding formed no part of the decision of the PBC to suspend and later revoke the applicant’s parole. That decision was based on the applicant’s alleged involvement in an agreement to unlawfully import cocaine into Canada for sale here and his association with others with whom contact was prohibited under the terms of his parole. It was the applicant’s own conduct that compromised his conditional liberty, not the fact of extradition proceedings or any delay in initiating them. 85 Third, it does not follow, as the applicant seems to suggest, from the fact U.S. authorities provided information to their Canadian counterparts about the alleged criminal activity of the applicant that the United States authorities were bound to accelerate the initiation of extradition proceedings. 86 Extradition proceedings inevitably involve alleged criminal activity in the jurisdiction of the extradition partner. The manner in which the investigation proceeds in connection with the activity is up to the law enforcement authorities in the jurisdiction where it occurs. Likewise, the decision about extradition proceedings. Whether they will be taken. When. On what basis. The requested state does not call the tune. International comity dictates otherwise. 87 Fourth, any collateral consequences in Canada of alleged criminal activity in the United States are of no moment to United States authorities. Neither the fact nor the nature of these consequences imposes any obligation on the United States authorities to hasten their decision about extradition proceedings or the pace at which those proceedings are pursued. It is their case to make, not ours to dictate. 88 In addition, once the PBC revoked the applicant’s parole and he was recommitted to serve the balance of his sentence, failing a contrary order by the Minister, s. 64(1) of the Act mandated that no surrender would take effect until the remanet of the applicant’s sentence expired. No United States of America v. Cavan David Watt J.A. 161

prejudice ensued from the pace at which extradition proceedings were pursued. 89 Reading the reasons of the Minister as a whole, I am not persuaded that the erroneous reference to the impact of delay on the applicant’s ability to adequately prepare for the extradition hearing (which had already been held) renders the surrender decision unreasonable. The applicant consented to committal, a step that put paid to any claim of prejudice in that respect. But the Minister went on to consider other aspects of prejudice that might ensue from delay. Such as its effect on the applicant’s ability to defend himself in the United States proceedings. He also weighed potential prejudice against Canada’s international obligations to its extradition partner. His conclusion was not unreasonable.

Ground #3: Alleged Unfair Burden of Proof 90 The final ground advanced by the applicant concerns the Minister’s authority under s. 64(1) of the Act to order that surrender take place before expiry of a sentence of imprisonment the person sought is then serving.

The Reasons of the Minister 91 The Minister considered the submission that Canadian authorities did nothing to advance the extradition proceedings while the United States charges prevented the applicant’s release on parole. The Minister wrote: With respect to your submission that Canadian authorities did nothing to advance this matter while the pending U.S. charges prevented Mr. Cavan from being released on parole, I note that an earlier extradition request would not have changed the fact that the U.S. charges would still have been pending until at least such time as Mr. Cavan was surrendered to the United States. With respect to persons sought serving sentences in Canada, I note that section 64 of the Act provides that, unless I order otherwise, a surrender order does not take effect until after the person has been discharged whether by expiry of the sentence or otherwise. Your materials indicate that Mr. Cavan was not eligible for statutory release until September 5, 2013, and that his sentence does not expire until July 27, 2015. In the circumstances, it is not apparent that an earlier request for extradition would have resulted in Mr. Cavan’s earlier release from custody in relation to the sentence he is currently serving in Canada. 162 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

The Arguments on Review 92 The applicant contends that the Minister placed an unfair burden on him to show that an earlier request for extradition would have resulted in his earlier release from custody on his U.S. sentence that had been transferred to Canada. Early surrender is in the hands of the Minister. It follows, the applicant says, that the burden should be on the Minister to explain why he would not have made an order under s. 64(1) had the extradition proceedings been instituted more promptly. In addition, the Minister failed to consider an order for temporary surrender under s. 66 of the Act. 93 The respondents point out that the complexities inherent in extradition proceedings engender delay. The underlying investigation within the jurisdiction of the extradition partner must be completed. In this case, the offence alleged to have been committed extended over a year, involved several alleged participants, included two separate prosecutorial authorities and required concurrent proceedings against the alleged parties to ensure contemporaneous apprehension. The Minister cannot dictate the pace of the foreign investigation or extradition proceedings. 94 The respondents say a fair reading of the Minister’s reasons fails to reveal the imposition of any burden on the applicant as he claims. As a general rule, surrender awaits sentence expiration. The Minister simply pointed out that it was not apparent that an earlier extradition request would have made a difference. Such an observation does not impose a burden on the applicant to demonstrate the contrary.

The Governing Principles 95 Earlier in these reasons, I canvassed the operation of the provisions of s. 64(1) of the Act. No purpose will be served by their repetition here.

The Principles Applied 96 I would not give effect to this complaint. My reasons for rejecting it are brief. 97 First, I do not read the reasons of the Minister as imposing a burden on the applicant to demonstrate that more timely initiation of the extradition proceedings would have resulted in the applicant’s earlier release. The reasons simply point out the general rule that s. 64(1) puts in place. This observation about the practical impact of the statutory provision does not, in terms or by necessary implication, impose any burden on the applicant. United States of America v. Cavan Grant Huscroft J.A. 163

98 Second, a contrary order by the Minister based simply on delay would offend comity in that it would necessarily imply ministerial authority to superintend the manner in which foreign authorities conduct their business. No such authority resides in the Minister.

Conclusion 99 For these reasons, I would dismiss the application for judicial review and affirm the surrender decision of the Minister.

S.E. Pepall J.A.:

I agree

Grant Huscroft J.A.:

I agree Application dismissed. 164 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

[Indexed as: Water Conservation Trust of Canada v. Alberta (Environmental Appeal Board)] Water Conservation Trust of Canada, Applicant and The Environmental Appeals Board, Director, Southern Region, Alberta Environment and Sustainable Resource Development and the Minister of Justice and Solicitor General for Alberta, Respondents Alberta Court of Queen’s Bench Docket: Calgary 1401-02680 2015 ABQB 686 S.D. Hillier J. Heard: September 15, 2015 Judgment: October 30, 2015* Environmental law –––– Statutory protection of environment — Approvals, licences and orders — Water — Usage –––– Applicant trust sought to have part of existing water licence transferred from company, for purpose habitat enhancement, recreation, fish and wildlife management — Regional director refused proposed transfer, finding that application was for purpose of implementing water conservation objective for which, under s. 51(2) of Water Act, only government could obtain licence to pursue — On applicant’s appeal, Minister confirmed decision in accordance with recommendation by Environmental Ap- peal Board — Applicant applied for judicial review — Application dismissed — Language and structure of Water Act simply could not sustain applicant’s argument that s. 51 of Act, governing applications for licence, did not apply to transfers of licences under ss. 81 and 82 of Act — Criteria set out in s. 82 of Act were not free-standing regime but were harmonized not only by parallel wording with s. 51 of Act but also by same proscriptions to determine substance of any sort of licensing — On principled basis, it simply made no sense for transfers to be screened differently from other licensing applications, and nothing in language of licensing transfer signaled intent to allow applicant to circumvent prescribed licensing categories on application for transfer — Board reasonably upheld Director’s authority to assess true purpose of application instead of accepting applicant’s stated purpose — Board reasonably concluded that proposed licence, to keep water passively instream to be overseen for habitat man-

* A corrigendum issued by the court on November 2, 2015 has been incorpo- rated herein. Water Conservation Trust of Canada v. Alberta (EAB) 165 agement purposes, did not meet definition of “diversion of water” — Board’s interpretation of “taking” to require more than possession and control was reasonable — It was clear that only government could hold licence providing or maintaining rate of flow or water level requirements to implement water conservation objective. Environmental law –––– Statutory protection of environment — Approvals, licences and orders — Judicial review — Grounds for judicial review — Miscellaneous –––– Applicant trust sought to have part of existing water licence transferred from company, for purpose habitat enhancement, recreation, fish and wildlife management — Regional director refused proposed transfer, finding that application was for purpose of implementing water conservation objective for which, under s. 51(2) of Water Act, only government could obtain licence to pursue — On applicant’s appeal, Minister confirmed decision in accordance with recommendation by Environmental Appeal Board — Applicant applied for judicial review — Application dismissed — Board reasonably concluded that proposed licence, to keep water passively instream to be overseen for habitat management purposes, was not “diversion of water” such that only government could hold such licence — It was implicit that Board determined that Director was entitled to reject application at preliminary stage of review process, given conclusion that process had not been completed — It would not be effective use of public resources to undertake analysis that would inevitably lead to same disposition — Application was not improperly rejected on basis of policy and public interest ground without notice under s. 34 of Act. Environmental law –––– Statutory protection of environment — Approvals, licences and orders — Judicial review — Standard of review –––– Applicant trust sought to have part of existing water licence transferred from company, for purpose habitat enhancement, recreation, fish and wildlife management — Re- gional director refused proposed transfer, finding that application was for purpose of implementing water conservation objective for which, under s. 51(2) of Water Act, only government could obtain licence to pursue — On applicant’s appeal, Minister confirmed decision in accordance with recommendation by En- vironmental Appeal Board — Applicant applied for judicial review — Applica- tion dismissed — Issues raised all touched on matters of interpretation and application of Water Act and its regulations, which was one of Board’s “home statutes” — None of matters raised fell outside of expertise of Board or were points of central importance to legal system — Case law established that significant level of deference should be applied to Board’s decisions on its home statutes — Interpretation and application of Act engaged variant interests, factors, and policy considerations such that appropriate measure was not whether court would have come to same conclusion — Decision would be reviewed for reasonableness. 166 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

Cases considered by S.D. Hillier J.: A.T.A. v. Alberta (Information & Privacy Commissioner) (2011), 2011 SCC 61, 2011 CarswellAlta 2068, 2011 CarswellAlta 2069, 339 D.L.R. (4th) 428, 28 Admin. L.R. (5th) 177, 52 Alta. L.R. (5th) 1, [2012] 2 W.W.R. 434, (sub nom. Alberta Teachers’ Association v. Information & Privacy Commissioner (Alta.)) 424 N.R. 70, (sub nom. Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association) [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 519 A.R. 1, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 539 W.A.C. 1 (S.C.C.) — considered Alliance Pipeline Ltd. v. Smith (2011), 2011 SCC 7, 2011 CarswellNat 202, 2011 CarswellNat 203, 328 D.L.R. (4th) 1, 56 C.E.L.R. (3d) 161, [2011] S.C.J. No. 7, [2011] A.C.S. No. 7, 102 L.C.R. 1, 16 Admin. L.R. (5th) 157, 412 N.R. 66, [2011] 1 S.C.R. 160 (S.C.C.) — referred to Court v. Alberta (Director, Bow Region, Regional Services, Alberta Environ- ment) (2003), 2003 ABQB 456, 2003 CarswellAlta 707, 1 C.E.L.R. (3d) 134, 2 Admin. L.R. (4th) 71, (sub nom. Court v. Environmental Appeal Board (Alta.)) 333 A.R. 308, [2003] A.J. No. 662 (Alta. Q.B.) — referred to Imperial Oil Ltd. v. Alberta (Minister of Environment) (2003), 2003 Carswell- Alta 620, 2 C.E.L.R. (3d) 236, 3 Admin. L.R. (4th) 252, 2003 ABQB 388, [2003] A.J. No. 721, 20 Alta. L.R. (4th) 107, 338 A.R. 1, [2004] 4 W.W.R. 562 (Alta. Q.B.) — followed Irving Pulp & Paper Ltd. v. CEP, Local 30 (2013), 2013 SCC 34, 2013 Car- swellNB 275, 2013 CarswellNB 276, [2013] S.C.J. No. 34, [2013] A.C.S. No. 34, 52 Admin. L.R. (5th) 1, 359 D.L.R. (4th) 394, (sub nom. CEPU, Local 30 v. Irving Pulp & Paper) 2013 C.L.L.C. 220-037, D.T.E. 2013T- 418, (sub nom. Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30) 445 N.R. 1, (sub nom. Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30) 1048 A.P.R. 1, (sub nom. Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30) 404 N.B.R. (2d) 1, 231 L.A.C. (4th) 209, (sub nom. Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd.) 285 C.R.R. (2d) 150, (sub nom. Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.) [2013] 2 S.C.R. 458, (sub nom. C.E.P.U., Local 30 v. Irving Pulp & Paper, Ltd) 77 C.H.R.R. D/304 (S.C.C.) — referred to Kelly v. Alberta (Energy Resources Conservation Board) (2012), 2012 ABCA 19, 2012 CarswellAlta 93, 19 C.P.C. (7th) 423, 60 Alta. L.R. (5th) 391, 519 A.R. 284, 539 W.A.C. 284, 41 Admin. L.R. (5th) 305 (Alta. C.A.) — referred to Water Conservation Trust of Canada v. Alberta (EAB) 167

Leon’s Furniture Ltd. v. Alberta (Information & Privacy Commissioner) (2011), 2011 ABCA 94, 2011 CarswellAlta 453, 22 Admin. L.R. (5th) 11, 45 Alta. L.R. (5th) 1, [2011] 9 W.W.R. 668, 502 A.R. 110, 517 W.A.C. 110, [2011] A.J. No. 338 (Alta. C.A.) — followed Manitoba Fisheries Ltd. v. R. (1978), [1979] 1 S.C.R. 101, [1978] 6 W.W.R. 496, 88 D.L.R. (3d) 462, (sub nom. Manitoba Fisheries v. Government of Canada) 23 N.R. 159, 1978 CarswellNat 146, 1978 CarswellNat 565, [1978] S.C.J. No. 78 (S.C.C.) — considered McColl-Frontenac Inc. v. Alberta (Minister of Environment) (2003), 2003 ABQB 303, 2003 CarswellAlta 461, 2 C.E.L.R. (3d) 75, 3 Admin. L.R. (4th) 62, 16 Alta. L.R. (4th) 114, [2003] 11 W.W.R. 114, 336 A.R. 234, [2003] A.J. No. 435 (Alta. Q.B.) — referred to Nanaimo (City) v. Rascal Trucking Ltd. (2000), 2000 SCC 13, 2000 CarswellBC 392, 2000 CarswellBC 393, 183 D.L.R. (4th) 1, 251 N.R. 42, 132 B.C.A.C. 298, 215 W.A.C. 298, [2000] S.C.J. No. 14, 9 M.P.L.R. (3d) 1, [2000] 1 S.C.R. 342, [2000] 6 W.W.R. 403, 76 B.C.L.R. (3d) 201, 20 Admin. L.R. (3d) 1, 2000 CSC 13 (S.C.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 2008 SCC 9, 2008 CarswellNB 124, 2008 CarswellNB 125, D.T.E. 2008T-223, [2008] S.C.J. No. 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, 64 C.C.E.L. (3d) 1, 69 Imm. L.R. (3d) 1, 69 Admin. L.R. (4th) 1, 372 N.R. 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] A.C.S. No. 9, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, 2008 CSC 9 (S.C.C.) — followed Ontario (Minister of Finance) v. Ontario (Information and Privacy Commis- sioner) (2014), 2014 SCC 36, 2014 CSC 36, 2014 CarswellOnt 5920, 2014 CarswellOnt 5921, (sub nom. Ontario (Minister of Finance) v. Smith) 457 N.R. 40, 69 Admin. L.R. (5th) 289, 373 D.L.R. (4th) 601, (sub nom. Ontario (Minister of Finance) v. Smith) 320 O.A.C. 135, [2014] S.C.J. No. 36, (sub nom. John Doe v. Ontario (Finance)) [2014] 2 S.C.R. 3 (S.C.C.) — referred to Osoyoos Indian Band v. Oliver (Town) (2001), 2001 SCC 85, 2001 CarswellBC 2703, 2001 CarswellBC 2704, 95 B.C.L.R. (3d) 22, [2002] 1 W.W.R. 23, 45 R.P.R. (3d) 1, 206 D.L.R. (4th) 385, 278 N.R. 201, 75 L.C.R. 1, [2002] 1 C.N.L.R. 271, 160 B.C.A.C. 171, 261 W.A.C. 171, [2001] S.C.J. No. 82, [2001] 3 S.C.R. 746, REJB 2001-27059, [1999] S.C.C.A. No. 355, 2001 CSC 85, [2001] B.C.T.C. 216 (S.C.C.) — referred to United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City) (2004), 2004 SCC 19, 2004 CarswellAlta 355, 2004 CarswellAlta 356, 46 M.P.L.R. (3d) 1, 236 D.L.R. (4th) 385, 318 N.R. 170, 18 R.P.R. (4th) 1, [2004] S.C.J. No. 19, 50 M.V.R. (4th) 1, 26 Alta. L.R. (4th) 1, 12 Admin. L.R. (4th) 1, 168 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

[2004] 7 W.W.R. 603, 346 A.R. 4, 320 W.A.C. 4, [2004] 1 S.C.R. 485, REJB 2004-55539, [2004] A.C.S. No. 19, 2004 CSC 19 (S.C.C.) — referred to Westridge Utilities Inc. v. Alberta (Director, Southern Region, Environmental Management) (2012), 2012 ABQB 681, 2012 CarswellAlta 1918, 84 Alta. L.R. (5th) 147, [2012] A.J. No. 1153 (Alta. Q.B.) — referred to Statutes considered: Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12 Generally — referred to s. 1(kkk) “storage” — referred to s. 100 — considered s. 102 — considered Water Act, R.S.A. 2000, c. W-3 Generally — referred to s. 1(1)(hh) “operation of a works” — considered s. 1(1)(hhh) “water conservation objective” — considered s. 1(1)(m) “diversion of water” (i) — considered s. 3(2) — considered s. 9 — considered s. 15 — considered s. 34 — considered s. 51 — considered s. 51(1) — considered s. 51(1)(b)(i) — considered s. 51(1)(b)(ii) — considered s. 51(2) — considered s. 51(2)(c) — considered s. 51(6) — considered s. 52(1) — considered s. 81 — considered s. 81(1) — considered s. 81(6) — considered s. 82 — considered s. 82(1)(a) — considered s. 82(5) — considered s. 82(6) — considered s. 82(7) — considered s. 115(1)(r) — considered Water Resources Act, R.S.A. 1980, c. W-5 Generally — referred to Water Conservation Trust of Canada v. Alberta (EAB) S.D. Hillier J. 169

Regulations considered: Water Act, R.S.A. 2000, c. W-3 Water (Ministerial) Regulation, Alta. Reg. 205/98 Generally — referred to s. 11 — considered

APPLICATION by applicant trust for judicial review of decision reported at Water Conservation Trust of Canada v. Director, Central Region, Operations Division, Alberta Environment and Sustainable Resource Development (2013), 2013 CarswellAlta 1817 (Alta. Environmental App. Bd.), dismissing applicant’s appeal from refusal to transfer part of existing water licence to it.

Maureen Bell, Davin MacIntosh, Arlene Kwasniak, for Applicant A.C.L. Sims, Q.C., for Respondent, Environmental Appeals Board Jodie Hierlmeier, for Respondent, Director, Minister of Justice and Solicitor General Craig W. Neuman, Q.C., for Respondent, Minister of Environment and Sustain- able Resource Development

S.D. Hillier J.: I. Introduction 1 The Director, Southern Region, Alberta Environment and Sustainable Resource Development (Director) refused to transfer part of an existing water licence from Conoco Phillips Canada (Conoco) to Water Conser- vation Trust of Canada (Applicant). The Minister confirmed the decision, as recommended by the Environmental Appeal Board (EAB). The Appli- cant argues that reviewable errors were committed in refusing to issue the licence transfer. For the reasons which follow, I have concluded that the application for judicial review must be dismissed.

II. Background 2 The Applicant’s transfer from Conoco relates to 100 acre-feet of water allocation instream flow ascribed to the Red Deer River, situated between two designated bridges in the South Saskatchewan River Basin. The stated purpose of the application before the Director was to change the licence from “industrial” to “habitat enhancement, recreation, fish and wildlife management and water management”. The Applicant’s cover letter dated June 8, 2010 expressly noted: We advise that this application if [sic] not for a water conservation objective. However, we understand that the Director has discretion to 170 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

decide whether a holdback will serve the public interest or a water conservation objective. In the cases where the water conservation objective has not been met, it may be argued that it is appropriate for the Director to take the holdback for the purpose of achieving the water conservation objective. 3 Lengthy discussion ensued. On February 11, 2011, the Director refused the proposed licence transfer on the basis that according to s. 51(2) of the Water Act, RSA 2000, c W-3, only the Government may hold a licence to provide or maintain rate of flow or water level. Consequently, the Director determined that the proposed transfer could not be accepted, as it would maintain a rate of flow or water level in support of a water conservation objective without diversion. He added: However, our proposal to hold the water allocation by one of Alberta Government’s ministries on your behalf to support the established Red Deer River Water Conservation Objective still stands. 4 The Applicant filed its appeal with the EAB pursuant to s. 115(r) of the Water Act on March 14, 2011, after which the parties engaged in further “without prejudice” negotiations, including mediation. On appeal, the Applicant argued that the application was not for a water conservation objective. 5 The EAB heard oral submissions on February 6, 2013 and issued its Report on March 8, 2013, recommending that the Minister confirm the Director’s decision not to accept the application for a water licence transfer. The EAB found that the substance of the application was to support water conservation objectives. Given the wording of the legislation, the licence sought could not be issued 6 By Order 60/2013 dated September 17, 2013, the Minister confirmed the refusal of a licence as recommended by the EAB, under s. 100 of the Environmental Protection and Enhancement Act, RSA 2000, c E-12 (EPEA). 7 The Applicant filed for judicial review on March 12, 2014, and the Certified Record of Board Proceedings was filed in three volumes on June 25, 2014. The judicial review was heard on September 15, 2015. 8 The parties raise no issue of delay or laches, nor do any objections arise from the various adjournments over the course of the proceedings. The parties are to be commended for their extended efforts to seek a resolution in the best interests of Alberta’s environment. Water Conservation Trust of Canada v. Alberta (EAB) S.D. Hillier J. 171

III. Relief Sought 9 The Applicant seeks a declaration: 1. quashing the Order as invalid based on one or more of the objections raised; and 2. directing reconsideration in accordance with the legislation and regulations based on an interpretation as would entitle the Appli- cant to consideration of its proposed licence transfer on the merits.

IV. Statutory Scheme 10 Numerous sections of the Water Act and regulations, all of which I have considered, were referenced in the course of written submissions. It is unnecessary to reiterate the full scheme of the Water Act, which re- placed the Water Resources Act, RSA 1980, c W-5. Following are the portions upon which the parties placed the greatest emphasis, and which have most directly informed the Court’s review (emphases added). 11 Section 51(1) of the Water Act contemplates differing applications for a licence: 51(1) On application for a licence by a person in accordance with this Act, the Director may, subject to subsection (2) ... issue or refuse to issue (a) a preliminary certificate to that person, or (b) a licence to that person for (i) a diversion of water, or (ii) the operation of a works, for any purpose specified in the regulations. (2) On application by the Government in accordance with this Act, the Director may issue a licence to the Government but to no other person, or may refuse to issue a licence, for (a) the diversion of water, (b) the operation of a works, or (c) providing or maintaining a rate of flow of water or water level requirements for the purpose of implementing a water conservation objective. 12 The Applicant relies on extracts from ss. 81 and 82: 81(1) An application for a transfer of an allocation of water under a licence must be made to the Director and 172 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

(a) must be made in a form and manner satisfactory to the Director, (b) must contain or be accompanied with any information required by the Director, (c) must be accompanied with the required fees, and (d) may be made with respect to all or part of an allocation of water under a licence. 82(5) In making a decision under subsection (1), the Director (a) must consider, with respect to the applicable area of the Province, the matters and factors that must be considered in approving a transfer of an allocation of water under a licence, as specified in an applicable approved water management plan, ... (b) may consider any existing, potential or cumulative (i) effects on the aquatic environment and any applicable water conservation objective, (ii) hydraulic, hydrological and hydrogeological effects, and (iii) effects on household users, traditional agriculture users and other licensees, that result or may result from the transfer of the allocation, and (c) may consider (i) effects on public safety, (ii) with respect to irrigation, the suitability of the land to which the allocation of water is to be transferred for irrigated agriculture, (iii) the allocation of water that the licensee has histori- cally diverted under the licence, and (iv) any other matters applicable to the transfer of the allocation that the Director considers relevant. 13 The following definitions are also relevant: 1(1) In this Act, (m) “diversion of water” means (i) the impoundment, storage, consumption, taking or removal of water for any purpose, except the taking or removal for the sole purpose of removing Water Conservation Trust of Canada v. Alberta (EAB) S.D. Hillier J. 173

an ice jam, drainage, flood control, erosion, control or channel realignment, and (ii) any other thing defined as a diversion in the regulations for the purposes of this Act. (hh) “operation of a works” means the operation of a works for the diversion of water. (hhh) “water conservation objective” means the amount and quality of water established by the Director under Part 2, based on information available to the Director, to be necessary for the (i) protection of a natural water body or its aquatic environment, or any part of them, (ii) protection of tourism, recreational, transportation or waste assimilation uses of water, or (iii) management of fish or wildlife, and may include water necessary for the rate of flow of water or water level requirements. 14 Section 3(2) provides that the property in, and the right to the diversion and use of, all water in the Province is vested in Her Majesty in right of Alberta except as provided for in the regulations. 15 Section 15 contemplates public consultation when water conservation objectives are established, whether under a water management plan pursuant to s. 9, or otherwise.

V. Parties’ Positions 16 The parties filed extensive Written Briefs. 17 The Applicant argues strenuously that of the four exceptions contemplated in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at paras 59-60, [2008] 1 S.C.R. 190 (S.C.C.) to which a correctness standard applies, two apply here: 1. a question of law of central importance to the legal system as a whole and outside the expertise of the tribunal; and 2. a true question of jurisdiction or vires. 18 The Applicant also asserts that the Court may rely to some extent upon prior cases addressing the applicable standard, depending on the issues to be considered. It argues that the existence of an admittedly strong privative clause, such as the one in s. 102 of the EPEA which 174 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

applies here, does not exclude a correctness standard in appropriate cases. 19 In the alternative, the Applicant argues that the decision is unreasonable in the face of the scheme of the Water Act and regulations. The Ap- plicant agrees that a presumption of a reasonableness standard is applied generally to questions of law involving statutory interpretation by an administrative tribunal of its home statute and related legislation. 20 Regarding the merits, the Applicant raises four grounds in support of its entitlement to a transfer of licence from Conoco without the Minister acting as holder of the licence (Applicant’s Brief, pp. 5-6): 1. The Application, by transfer or otherwise, for a licence to be held by a non-government entity is permissible for habitat enhancement, recreation, fish and wildlife management as well as water management, and should not be re-characterized to a non-permissible purpose; 2. The Water Act does not, by its reference to “diversion of water”, preclude the Minister from authorizing the licence transfer on the merits of the application, which should have been fully reviewed; 3. The Water Act also does not authorize the Director to refuse a transfer prior to doing a review of compliance with the mandatory requirements of ss. 81(1) and 82(5) of the Water Act, including public notice under s. 108; and 4. Sections 81(1) and 82(5) of the Water Act do not confer power to refuse a transfer application because the Director is of the opinion that the application is not in the public interest. 21 In oral submissions, the Applicant placed considerable emphasis on the difference between the transfer process (ss. 81-82) as separate and distinct from the licensing process (ss. 51(1)-(2)). It asserts that there is no limitation on the authority of the Director to accept and process an application for a transfer. Specifically, there is no need for a diversion of water. It was therefore improper to re-characterize the application for the listed purposes of habitat enhancement and water management, as being for the purpose of water conservation to maintain water flow. Alterna- tively, the Applicant argues that the circumstances of its request do meet the criteria of diversion because, even though the water remains instream, the effect of the licence will constitute a “taking” in the ordinary sense of exerting possession or control. Water Conservation Trust of Canada v. Alberta (EAB) S.D. Hillier J. 175

22 The various Respondents, represented by separate counsel, made submissions in general accord with the parameters of their differing status and role upon judicial review. These positions were properly advocated as contemplated in Imperial Oil Ltd. v. Alberta (Minister of Environ- ment), 2003 ABQB 388, 338 A.R. 1 (Alta. Q.B.), and as more broadly set out in the cases cited in Leon’s Furniture Ltd. v. Alberta (Information & Privacy Commissioner), 2011 ABCA 94, 502 A.R. 110 (Alta. C.A.). 23 The Respondents take no issue with the proposed location of the licence sought. However, they take the position that the purpose is unau- thorized other than for operation by the Government. They submit that there is no reviewable error having regard to: the scope of the legislation, the nature of the issues, the roles required to be performed, and the reasons upon which the application was rejected. 24 The Respondents, most stridently counsel for the EAB, urge that the Applicant has not rebutted the presumption that the reasonableness standard of review applies. They emphasize that the four issues, properly framed, raised and taken collectively, should be reviewed on a standard of reasonableness, with deference accorded to bodies in the interpretation of their home statutes as noted in A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61, [2011] 3 S.C.R. 654 (S.C.C.). 25 The Director and Alberta Justice address the statutory scheme under the Water Act including the Director’s role, the standard of review, and the basis upon which the Court should affirm the Director’s interpretation, particularly of s. 51 of the Water Act. These Respondents in particular rely on the polycentric nature of issues raised under the Water Act. They submit that a broad discretion has been accorded to the Director, attracting a deferential standard of review. They submit that there is no reviewable error. They assert that all licensing, including transfers, must comply with s. 51. Section 51 differentiates between a licence issued to “a person”, and a water conservation objective licence (WCO) that can only issue to “the Government”. An application by a person must accord must be for the purpose of diversion of water or operation of a works as contemplated under s. 51(1)(b)(i) and (ii). Therefore, the Director’s interpretation of the substance - as distinct from the form - of the proposed transfer, was entirely reasonable. 26 Without directly arguing the merits, the EAB somewhat re-contextu- alizes the role of the Director in order to explain the EAB’s position on the standard of review of its own reasons. It profiles its role under the Water Act - derived from the EPEA - as a specialized tribunal with ex- 176 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

pertise in recognizing competing interests, which cross jurisdictional boundaries and are affected by unpredictable factors. It asserts that the EAB properly considered the Applicant’s four grounds in its decision, and that the refusal of the Director to approve the Application was fully supported under the legislation. 27 The Respondent Minister argues that her role, the facts and the statutory scheme support a deferential standard of reasonableness to be applied to all issues. She asserts that the Director was acting within its statutory authority in considering the application, and that no general question of law is raised on review. Therefore, the Court should apply deference to the decision if it falls within the range of defensibly acceptable outcomes.

VI. Analysis A. Standard of Review 28 Despite the Applicant’s various criticisms of the Director’s process and decision, the focus in this judicial review is on the EAB’s decision as relied upon by the Minister without modification. 29 Upon careful consideration, and apart altogether from the proper statement of the live issues on review, I find the issues raised all touch on matters of interpretation and application of one of the EAB’s “home statutes”, namely the Water Act and its regulations. I am not persuaded that the situation is exceptional, nor that any of the matters fall outside the expertise of the EAB and are points of central importance to the legal system as contemplated in the ATA decision at paras 34-46. See also Alliance Pipeline Ltd. v. Smith, 2011 SCC 7 (S.C.C.) at para 26, [2011] 1 S.C.R. 160 (S.C.C.). 30 This conclusion is unaltered by the argument that the interpretation of the legislation will create a precedent and significantly affect the law regarding this legislation. Precedential value is only one aspect of court decisions and does not alone vault a case onto a status of central importance to the law. Nor will a decision of general public concern or wide interest necessarily fit into this exception. See Irving Pulp & Paper Ltd. v. CEP, Local 30, 2013 SCC 34 (S.C.C.) at para 66, [2013] 2 S.C.R. 458 (S.C.C.). 31 I am informed by prior decisions which have considered the scope of review affecting the EAB’s decisions dealing with its home statutes. Va- rious cases support a significant level of deference that remains appropri- Water Conservation Trust of Canada v. Alberta (EAB) S.D. Hillier J. 177

ate having regard to the enduring criteria to be applied: Court v. Alberta (Director, Bow Region, Regional Services, Alberta Environment), 2003 ABQB 456 (Alta. Q.B.) at paras 41-51, (2003), 333 A.R. 308 (Alta. Q.B.); McColl-Frontenac Inc. v. Alberta (Minister of Environment), 2003 ABQB 303 (Alta. Q.B.) at paras 21-34, (2003), 336 A.R. 234 (Alta. Q.B.); Kelly v. Alberta (Energy Resources Conservation Board), 2012 ABCA 19 (Alta. C.A.) at paras 8-10, (2012), 519 A.R. 284 (Alta. C.A.); Westridge Utilities Inc. v. Alberta (Director, Southern Region, Environmental Management), 2012 ABQB 681 (Alta. Q.B.) at paras 12- 13, (2012), 84 Alta. L.R. (5th) 147 (Alta. Q.B.). 32 Given this body of case law, it is not necessary to particularize reference to the Pushpanathan factors. However, I am fully satisfied that the review here deals with interpretation of the enabling legislation and applicable regulations of a tribunal with complex and specialized responsibilities in a public policy context under a strong privative clause. That expertise is not diminished by the fact that other departments and tribunals are obliged to interpret and assess the impact of the legislation. Nor is expertise confined only to considerations on the merits, particularly as it is the EAB’s decision which is the subject of this review, and not that of the Director. 33 The interpretation and application of the Water Act engage variant interests, factors and policy considerations. It would be inappropriate to measure the outcome of an appeal from the EAB in these circumstances by determining whether the Court would have come to the same conclusion. The Court should not interfere so long as the decision is within the range of reasonable disposition of the issues presented. 34 Accordingly, the decision will be reviewed for reasonableness. Of course, this leaves open the proper consideration of all the circumstances in a probe of the justification, transparency and intelligibility of the decision on the issues presented, standing alone or collectively, as may taint the sustainability of the decision and recommendation of the EAB upon which the Minister relied.

B. Transfer versus Licence 35 I note at the outset that the Applicant’s argument to the effect that s. 82 transfers are separate and do not engage s. 51was not argued before the EAB, nor was it included in the Applicant’s written submission to the EAB. It was, however, profiled by all three counsel arguing for the Ap- 178 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

plicant on judicial review as a substantive matter going to the Board’s jurisdiction. 36 It is always preferred that arguments be raised at the earliest opportunity, and the Applicant did not explain how this argument was excluded in earlier proceedings. The argument is not, however, particularly com- plicated, the omission was inadvertent on its face, it does not rely on any new evidence, and the Respondents were not materially prejudiced. De- spite some objection from the EAB’s counsel that the Board should have had an opportunity to hear and address this argument, I agreed to allow full argument as it may raise a reviewable error of law. 37 Although this issue is distinct, it does tie into the objections to the manner in which the Director handled the transfer application, as profiled in the Applicant’s four cited grounds. I will deal with the new argument first because in some ways it sheds light on the Applicant’s perspective; it seems to have anticipated approval of the transfer in large part assuming it would be viewed as being beneficial to the environment. 38 The language and structure of the Water Act simply cannot sustain the Applicant’s argument that s. 51 does not apply to transfers under ss. 81 and 82. The transfer process contemplates that, if approved, a new licence will be issued: ss. 82(1)(a), (6) and (7). The section which empow- ers the Director to issue any licence is s. 51. The criteria set out in s. 82 are not a free-standing regime for licencing. They are harmonized not only by parallel wording, but also by the same proscriptions imposed on the Director to determine the substance of any sort of licencing according to the authority granted in s. 51. 39 On a principled basis, it simply makes no sense for transfers to be screened differently from other licensing applications. Nothing in the language of the licensing transfer process signals any intent to allow an applicant to circumvent the prescribed licensing categories on an application for transfer. 40 Thus, it was not at all an error, much less a jurisdictional error, for the EAB to examine the nature of the application according to the statutory criteria for actual licensing.

C. First Ground - Improper re-characterization of transfer application 41 The Applicant states that it applied for a licence on transfer for the stated purpose of habitat enhancement, recreation, fish and wildlife management and water management under the Water (Ministerial) Regula- tion, Alta Reg 205/1998. The Director found instead that the application Water Conservation Trust of Canada v. Alberta (EAB) S.D. Hillier J. 179

was for the purpose of implementing a water conservation objective, which is also a listed purpose under s. 11 of the same regulation, but one that only the Government may obtain a licence to pursue under s. 51(2) of the Water Act. The Applicant takes the position that a licence may support a water conservation objective without implementing it. 42 A party seeking a licence, whether predicated on a transfer or otherwise, will file the application according to its perspective. That neither binds the Director, nor does it relieve the Director of the responsibility to assess the true nature of the licence sought. In other words, the substance of the application must comply with the Act and regulations taken as a whole. Compliance must be measured on the whole of the application and an invalid component of the transfer cannot be cured by inclusion of other valid objectives. 43 From the Record, it is apparent that the Director, acting initially through the District Approvals Manager, determined that the substance of the application was to support the water conservation objective for instream flow in the Red Deer River (Record, p. 631). That conclusion was reached following discussion with, and significant input from, the Applicant. The EAB addressed the objection at paragraphs 108 to 119 of its Report. There is nothing unreasonable in the EAB’s conclusion upholding the authority of the Director to assess the true purpose of the application.

D. Second Ground - Scope and application of diversion of water 44 The Director took the position in front of the EAB that leaving water passively instream does not meet the definition of “diversion of water”. If water is held instream as a rate of flow for a water conservation objective, then the water is not available for other purposes, which are generally economic. The Director opined that the Government is in the best position to consult with the public and weigh the implications of allocation. 45 The Applicant argues that the EAB erred both in the interpretation of the need for the application to demonstrate a diversion of water and in all events in concluding that the proposed licence would not meet the definition of “diversion of water”. The listed purposes in its application can be met while water is instream without the use of physical works, and thus falls within the definition of “diversion of water”. 46 The Record includes a legal opinion dated October 29, 2010 and prepared by Professor Arlene Kwazniak, a director of the Water Conserva- 180 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

tion Trust of Canada and one of the Applicant’s counsel on this application (pp. 659-665). As a scholar in the specialized area of environmental law, including water law, her opinion is that the Water Act authorizes the issuance of an instream flow licence for management of wildlife, habitat enhancement, recreation or water management as contemplated by the regulations. She explains that “diversion of water” can include leaving water instream by impoundment, storage or taking of the water. There is no need for any removal of the water from the source. She relies on definitions from the dictionary and other legislation: • “impound” means to seize and take legal possession of; • “storage” means holding of a substance or thing for a temporary period at the end of which it is processed, used, transported, treated or disposed of (EPEA, s. 1(kkk)); • “taking” means to lay hold of, to gain or receive into possession, to seize, to deprive one of the use or possession of, to assume ownership. 47 The Applicant also cited various cases to support a no-physical-removal: Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85 (S.C.C.) at para 86, [2001] 3 S.C.R. 746 (S.C.C.) (“taking” of lands); Manitoba Fisheries Ltd. v. R. (1978), [1979] 1 S.C.R. 101, [1978] S.C.J. No. 78 (S.C.C.) at paras 110-111 (“taking” of property), in addition to other cita- tions where the law recognized the concept of “taking” as an exercise of possession or control of land or a stream. The Applicant urges that the term “taking” would be redundant to the word “removal” if a physical relocating was required, and the Court ought to avoid redundant interpretations: Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13 (S.C.C.) at para 23, [2000] 1 S.C.R. 342 (S.C.C.); Ontario (Minister of Finance) v. Ontario (Information and Privacy Commissioner), 2014 SCC 36 (S.C.C.) at para 53, [2014] 2 S.C.R. 3 (S.C.C.). 48 Finally the Applicant asserts that the former Water Resources Act authorized privately-held instream licences, and relies on a presumption against alteration of law by implication: United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19 (S.C.C.) at para 11, [2004] 1 S.C.R. 485 (S.C.C.). 49 The EAB addressed the interpretations urged by the Applicant in paragraphs 110 to 126 of its Report. It rejected the passive definition of “taking”, declining to read “control” and “possession” into the definition. As to legislative history and prior licensing, it considered the arguments and concluded that legislative changes were made to reflect society’s Water Conservation Trust of Canada v. Alberta (EAB) S.D. Hillier J. 181

concerns regarding water resources and increasing demands on water supplies. 50 The EAB concurred with the parties that s. 52(1) could have been better drafted (Report at para. 112, Record at p. 40). But even as written, one legislative message is clear: only the Government may hold a licence which provides or maintains a rate of flow of water or water level requirements for the purpose of implementing a water conservation objective. It is beyond dispute that no other person may hold a licence for such purpose. 51 As has been clear throughout, the Applicant’s proposed transfer would maintain a rate of flow or water level. The water would remain instream and would be overseen by the Applicant as to the listed management and protective purposes. 52 There is nothing to indicate any variance whatsoever from the Crown’s vested rights in the water under s. 3(2). Licensing, other than to the Government, must engage a diversion of water whether by the operation of a works (such as a dam or canal) or otherwise. Nothing in the words used contemplates a licence to a person under s. 51(1) where the water remains undiverted in situ. 53 The EAB’s conclusion that “taking” requires more than possession and control is an interpretation which the words can fully support, particularly applying the ejusdem generis principle in the context of the various terms used to define “diversion of water”. Control on the volume of diverted water is reinforced by the volume limitations set in s. 51(6). 54 It is unnecessary for this Court to consider which terms may carry stronger temporal limits, better restore original volumes, or require a “works” structure to accomplish the diversion. It is not unreasonable to conclude that the absence of a diversion of instream water, regardless of the end purposes in support of a water conservation objective, would disqualify the application of any licencee other than the Government under s. 51(2). 55 This interpretation is not undermined by any presumption of retained rights. The phrase “but to no other person” would otherwise be rendered meaningless. Further, the Applicants could proffer nothing to sustain that phrase’s inclusion, if the net result was that persons could nonetheless obtain licences for maintaining a rate of flow or level for instream water. Statutory interpretation seeks to avoid redundancy. 182 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

56 I conclude that the interpretation adopted by the EAB in its Report and Recommendation to the Minister is reasonable.

E. Third Ground - Director’s obligation to review compliance with the mandatory requirements 57 The Applicant argues that the Director cannot refuse a transfer licence prior to doing a review to determine whether the application complies with the mandatory requirements set out in ss. 81(1) and 82(5) of the Water Act. 58 The Director’s stages to processing an application were set out in the EAB’s Report (para 60) as follows: (1) The Director considers whether it has the authority to issue what has been applied for; (2) The Director considers whether the application is complete; (3) Public notice of the application is given, allowing Statements of Concerns to be filed; (4) A technical review of the application is completed, taking State- ments of Concerns into consideration. 59 The EAB concluded that the review process was not completed. However, this does not really answer the issue as to whether that was a requirement. EAB counsel argues that it was implicit that the EAB determined that the Director was entitled to reject the application at the preliminary stage without going through all the steps. Such a conclusion can only derive from the recommendation that the Minister confirm the Di- rector’s decision to not accept the application. I find that it is a reasonable inference in the circumstances. 60 There can be no perceived efficiency in what the Applicant is advocating here. The circumstances are not the same as a hearing or trial where findings are made on alternative arguments after all the evidence is heard in order to minimize the risks of a further re-hearing. It simply makes no sense that the remaining steps be pursued when it has been determined that a licence as sought simply cannot be issued under the Act. It would not be an effective use of public resources to undertake an analysis which would inevitably lead to the same disposition. Continua- tion would only frustrate participants, delay judicial review of the decision, and potentially delay consideration of other applications. 61 There is no suggestion that the application could have been re-format- ted to avoid the result. The Record discloses that the Applicants knew of Water Conservation Trust of Canada v. Alberta (EAB) S.D. Hillier J. 183

the Director’s interpretation of s. 51(2) early on, and nothing indicates an amended proposal for a diversion or operation of a works under s. 51(1). The parties considered at length other means by which the Government could assist in achieving the Applicant’s goals. The Director acknowledged those goals as being laudable, and the EAB agreed (Report, para. 130). 62 The mandatory language in ss. 81(1) and 82(5) does not support the argument that all steps must be completed if the application is destined to fail. The mandatory wording of s. 81(6) is aimed at the requirement for a public review only in the context of a contingent impact on the community interest of an application which the Director is authorized to issue. Absolutely nothing in a public review can alter or enhance that authority.

F. Fourth Ground - Director not authorized to consider public interest 63 The Applicant asserts that its application was really rejected on policy and public interest grounds without notice pursuant to s. 34 of the Water Act. Counsel for EAB notes that this point was not raised before the EAB and consequently is not addressed in the Report. Any references to legislative purpose were responsive to arguments made in support of the Ap- plicant’s position on the intent of the new legislation. This appears to be confirmed by the Applicant’s reference to a portion of its Rebuttal filed with the EAB dealing only with the rights of a private person to hold an instream licence for a purpose authorized by the regulations, subject only to policy reasons. 64 Again, for completeness I will deal with this argument with the repeated admonition that judicial review should, wherever practicable, deal with points raised in front of the tribunal in the first instance. 65 I have no difficulty concluding that the powers of the Minister in s. 34 to block the application have not been engaged in this case. That statutory authority does not form any part of the case as determined by the EAB or upon judicial review. Nor by implication is the Court able to discern any such policy considerations - independent of the legislative wording taken as a whole - which taint the EAB’s Report or the Min- ister’s decision. 66 My conclusion in this regard does not ignore that much remains of the topic of private licencing for future consideration by interested parties. In this regard, the Applicant points to the Approved Water Manage- ment Plan for the South Saskatchewan River Basin August 2006, filed as part of the Record. Section 2.9 of that Plan sets out some possible 184 ADMINISTRATIVE LAW REPORTS 99 Admin. L.R. (5th)

amendments for future discussion. Nothing in that regard has been crys- talized in the EAB Report. As such, it has not been factored into these reasons for decision.

VII. Conclusion 67 Overall, I find sufficient transparency and intelligibility in the EAB’s reasons upon which the Minister relied. The reasons support an interpretation of the legislation that is within the range of possible, acceptable and defensible outcomes. The Minister’s decision to reject the application was within her powers. 68 Accordingly, the application for judicial review is dismissed.

VIII. Costs 69 As addressed at the close of argument, all parties shall bear their own costs. Application dismissed.