Alberta (Information and Privacy Commissioner) v. University of Calgary: The Supreme Court’s Administrative Law Equivocality

Despite numerous attempts by the Supreme Court of Canada to clearly elucidate the parameters of substantive review, observers endeavouring to accurately predict the Court’s standard of review analysis in administrative law matters are still more likely to forecast Powerball numbers. Alberta (Information and Privacy Commissioner) v. University of Calgary¹ is no exception.

In Alberta, a dismissed University of Calgary employee sought access to university records, through the Freedom of Information and Protection of Privacy Act,² that the University maintained were privileged. After numerous attempts by a delegate of the Commissioner to have the University clarify its position, the delegate sought production of the records to substantiate the claim of privilege. This request was made by the delegate under s. 56(3) of FOIPP, which requires public bodies to disclose records to the Commission notwithstanding “any privilege of the law of evidence.”³ The University refused.⁴

The majority of the Supreme Court in Alberta determined that the question of whether FOIPP authorizes the Commissioner to review privileged documents, one of statutory interpretation, was of central importance to the legal system as a whole and outside the Commissioner’s area of expertise.⁵ As such, they imposed a correctness standard of review.⁶ Under the correctness standard of review, “a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question.”⁷ This approach allows the court to substitute its own view for that of the tribunal.

Justice Abella, in dissent, was unsettled by the majority’s assertion that the appropriate standard of review was correctness. After all, as per Dunsmuir, the delegate in this case was interpreting a single provision within the Commission’s home statute,⁸ and was “not being asked to explain the content of solicitor-client privilege for the whole legal system.”⁹ Moreover, since the legislature mandated that the Commissioner resolve matters of solicitor-client privilege under s. 27(1)(a) of FOIPP, it was dubious to conclude that such determinations were outside the Commissioner’s expertise.¹⁰ These factors supported a reasonableness standard of review.

Justice Abella added that the Court had previously adjudicated solicitor-client privilege and disclosure decisions by Information and Privacy Commissioners. In those decisions, the Court applied the reasonableness standard of review.¹¹ As established in Dunsmuir, where “courts ascertain [that] the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question,” that standard of review governs.¹² It is only where this approach “proves unfruitful” that a court can proceed to further examine the appropriate standard of review.¹³

The result by the majority in Alberta is especially confounding in light of the Court’s attempts to clarify the relationship between home statutes and the reasonableness standard of review in McLean v. British Columbia (Securities Commission).¹⁴ In that case, the Court reiterated their position in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association,¹⁵ wherein they stated that the interpretation of a home statute by a tribunal “should be presumed to be a question of statutory interpretation subject to deference on judicial review.”¹⁶

The Court in McLean indicated that the Alberta Teachers presumption may be rebutted as long as there is a general question of law which is “both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise.”¹⁷ This is because of such questions’ “impact on the administration of justice as a whole…requir[ing] uniform and consistent answers.”¹⁸ As such, “correctness review for such questions ‘safeguard[s] a basic consistency in the fundamental legal order of our country.’”¹⁹

In McLean, the issue was the interpretation of a limitation period within British Columbia’s provincial securities legislation.²⁰ In their decision, the Court found that although limitation periods are generally centrally important to the fair administration of justice, the British Columbia Securities Commissioner’s interpretation of the limitation period within its home statute was merely “a nuts-and-bolts question of statutory interpretation confined to a particular context.”²¹ The Court added that while it was possible that a reasonableness standard of review in this context could result in other provincial securities commissions arriving at differing interpretations of their own statutory limitation periods, this was merely a function of federalism, not a fault within administrative law.²²

The rationale for the Court’s decision in McLean is one that the Court maintains they have upheld since Dunsmuir. That is, they claim that their decision was based on the principle that administrative decision makers can usually best resolve unclear language within their home statutes, as such “interpretive discretion” is within their expertise.²³ However, the decision in McLean stands at odds with the Alberta decision.

In fact, the Court’s only consistency since Dunsmuir is that of unresolved questions regarding the “central importance” cases. Justice Binnie, concurring in Dunsmuir, correctly predicted complications following the Court’s development of the standard of review analysis framework in that case. He stated the following:

It is, with respect, a distraction to unleash a debate in the reviewing judge's courtroom about whether or not a particular question of law is “of central importance to the legal system as a whole”. It should be sufficient to frame a rule exempting from the correctness standard the provisions of the home statute and closely related statutes which require the expertise of the administrative decision maker...Apart from that exception, we should prefer clarity to needless complexity and hold that the last word on questions of general law should be left to judges.²⁴

This proclamation has greater significance today in light of the Court’s repeated inconsistency in standard of review analyses. It is clear after Alberta that the Supreme Court of Canada must either more plainly delineate the requirements of questions of “central importance to the legal system as a whole” and which exist outside of a decision maker’s expertise, or simplify standard of review analyses by abandoning this aspect of the test. Lawyers, academics, students, and administrative decision-makers in Canada would be all the more informed for it.

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^* BA Hons (University of Ottawa), JD (University of Saskatchewan).

¹ 2016 SCC 53, [2016] 2 SCR 555 [Alberta].

² RSA 2000, c F-25 [FOIPP].

³ Ibid.

⁴ Alberta, supra note 1 at paras 3-8.

⁵ Ibid at para 20.

⁶ Ibid at para 19.

⁷ Dunsmuir v New Brunswick, 2008 SCC 9 at para 50, [2008] 1 SCR 190 [Dunsmuir].

⁸ Alberta, supra note 1 at para 132.

⁹ Ibid at para 136.

¹⁰ Ibid at para 135.

¹¹ Ibid at para 131.

¹² Dunsmuir, supra note 7 at para 62.

¹³ Ibid.

¹⁴ 2013 SCC 67, [2013] 3 SCR 895 [McLean].

¹⁵ 2011 SCC 61, [2011] 3 SCR 654 [Alberta Teachers].

¹⁶ Ibid at para 34.

¹⁷ McLean, supra note 14 at para 26, quoting Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 at para 22, [2011] 3 SCR 471 [Mowat] [emphasis added].

¹⁸ McLean, ibid at para 27, quoting Dunsmuir, supra note 7 at para 60.

¹⁹ McLean, ibid, quoting Mowat, supra note 17 at para 22.

²⁰ McLean, ibid at paras 2-3.

²¹ Ibid at para 28.

²² Ibid at para 29.

²³ Ibid at para 33.

²⁴ Dunsmuir, supra note 7 at para 128.