Administrative law – Decisions of administrative tribunals – Freedom of information and protection of privacy – Privacy commissioner – Disclosure – Judicial review – Application to participate in hearing – Natural justice – Standard of review – Reasonableness simpliciter
British Columbia (Minister of Water, Land and Air Protection) v. British Columbia (Information and Privacy Commissioner),  B.C.J. No. 735, British Columbia Court of Appeal, April 16, 2004, Hall, Low and Lowry JJ.A.
The Ministry of Water, Land and Air Protection (“Ministry of Land”) collects data concerning grizzly bears killed by hunters under a mandatory reporting system established pursuant to the Wildlife Act, R.S.B.C. 1996, c.488. Hunters are required, within 15 days after the kill, to report information about the locations as well as the species and sex of the animal killed. This information is then placed on a mapping system used by the Ministry to plot accurate co-ordinates of grizzly bear populations. Hunters have been advised that the information they supply will be kept confidential by the Ministry.
In April of 2000, an environmental group requested records disclosing the physical locations where grizzly bears had been killed as a result of sport hunting. These requests were filed under the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 (the “Act”). Pursuant to Schedule 1 of the Act, the Ministry of Land is a public body and, pursuant to the provisions of section 4 of the Act, a person who makes a request has a right to access any record in the custody or under the control of such an organization subject to certain exceptions.
As a result of the request, the Ministry provided the environmental group with some grizzly bear kill information; however, they withheld precise information specifying the co-ordinates and precise geographic description of the kill location. In refusing to release more detailed information about the site of grizzly bear kills, the Ministry relied on the provisions of section 18(b) of the Act, which provide:
18. The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to result in damage to, or interfere with the conservation of,
(b) an endangered, threatened or vulnerable species, subspecies or race of plants, vertebrates or invertebrates …
The environmental group was not content with the extent of the disclosure made by the Ministry, and they requested that the Commissioner review the Minister’s response.
The Commissioner proceeded to conduct an inquiry as required pursuant to the Act. On December 3, 2001, the Commissioner issued his decision that the Ministry was not authorized by section 18(b) to refuse to disclose the entire kill location data as it had not established that disclosure could reasonably be expected to damage grizzly bears or interfere with their conservation.
The Guide Outfitters Association filed an application for judicial review. They argued that they had not been invited to or allowed to participate in the proceedings before the Commissioner and that as an interested party, their exclusion was a breach of natural justice. They sought the same general relief as did the Ministry; however, they asserted that their interests were different than those of the Ministry and that they therefore ought to have been given the opportunity to make submissions.
The judicial review application by the Guide Outfitters Association was allowed in part by the Supreme Court of B.C. The court found that there had been a breach of natural justice due to the failure of the Commissioner to include the appellants as participants in the inquiry process. The matter was remitted to the Commissioner in order to allow him to consider further material and submissions on behalf of the appellants. However, the court refused to allow the Guide Outfitters Association the opportunity to submit evidence on conservation.
The Guide Outfitters Association appealed the Supreme Court decision on the grounds that the lower court erred in not allowing them to place information relating to conservation before the Commissioner. The environmental group and the Commissioner filed cross-appeals arguing that the chambers judge erred in granting an Order at all.
In dismissing the appeal and allowing the cross-appeals the Court of Appeal held that the chambers judge had failed to properly apply the standard of review. The court held that the Commissioner is intimately familiar with the area of access to information and alive to issues such as the parameters of likely concern by those who could be affected by the Commissioner’s decisions. Given the Commissioner’s expertise and familiarity, a deferential standard of review is called for. Furthermore, the Commissioner was not so much interpreting a legislative provision but deciding how to apply the legislation which involves case specific factual matters as well as the exercise of discretion. The Court of Appeal held that the standard of review should be one of reasonableness.
In allowing the cross-appeals, the Court of Appeal held that the lower court erred in failing to articulate fully and consider the proper standard of review to be applied to the decision of the Commissioner. Had the court undertaken this exercise, it would have reached the conclusion that the decision of the Commissioner under attack was a reasonable one and not unfair to the Appellants.
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