The decision of a delegate of the Information and Privacy Commissioner for British Columbia which ordered the British Columbia Archives to process a request made pursuant to the Freedom of Information and Protection of Privacy Act for production of the incomplete draft report of the Smith Commission of Inquiry into the affairs of the Nanaimo Commonwealth Holding Society was quashed by the Court as the Court held that the report was a draft decision of a person acting in a judicial or quasi-judicial capacity and was therefore immune from production by virtue of section 3(1)(b) of the Act

Administrative law – Freedom of information and protection of privacy – Disclosure of draft report – Immunity of person acting in quasi-judicial capacity – Decisions of administrative tribunals – Privacy commissioner – Judicial review – Standard of review – Correctness – Compliance with legislation

British Columbia (Attorney General) v. British Columbia (Information and Privacy Commissioner), [2004] B.C.J. No. 2534, British Columbia Supreme Court, December 3, 2004, Paris J.

A delegate of the Information and Privacy Commissioner for British Columbia ordered the British Columbia Archives to process a request made pursuant to the Freedom of Information and Protection of Privacy Act (the “Act”) by a member of the public, Mr. Hayes, for production of the incomplete draft report of the Smith Commission of Inquiry into the affairs of the Nanaimo Commonwealth Holding Society. In October 2001, the Archives had received a request from Mr. Hayes for access to the draft report. The Archives refused the request advising Mr. Hayes that the draft report was outside the scope of the Act by virtue of section 3(1)(b) which held that the Act did not apply to draft decisions of a person acting in a judicial or quasi-judicial capacity.

Mr. Hayes asked for a review of that decision and it was considered by the delegate who held that in the conduct of the inquiry the Commissioner had not been acting in a quasi-judicial or judicial capacity and that the draft report was not a draft decision for the purposes of section 3(1)(b) of the Act. Thus, the report was ordered produced. The petitioners (apart from the Attorney General) were persons referred to in various ways in the draft report who brought an application for an order pursuant to the Judicial Review Procedure Act to set aside the decision of the delegate.

The Court held that the standard of review in this case was that of correctness.

The Court noted that the Commission commenced public hearings in 1999. In August 2000, counsel for the Commission issued “Notices of Adverse Interest Finding” to 22 persons. The Commission was eventually rescinded by order in council issued on June 22, 2001. At the time that the Commission was rescinded and its work was brought to an end, it had produced a substantial but incomplete draft report of its findings. The draft report, including the Notices of Adverse Interest Finding, were subsequently transferred to the British Columbia Archives.

The Court held that it was obvious in this case that the Commissioner intended to act in a judicial-like capacity. The Commissioner explicitly set out to pass judgment on the conduct of individuals and in fact proceeded to weigh evidence and make findings of credibility. Twenty-two Notices of Adverse Interest Finding were set out drawing conclusions and making statements – sometimes in forceful language – as to unlawful and unethical conduct. Alive to the consequences of such proposed findings to those concerned, the Commissioner established extensive procedural safeguards such as the right to cross-examine and publication bans. Under the Inquiry Act the Commissioner had most of the powers and legal privileges of a Supreme Court Judge. The Court held that the delegate described too narrow a meaning to the words “acting in a quasi-judicial capacity” in section 3(1)(b) of the Act and the Court concluded that the actions of the Commissioner in this case came within the ambit of those words.

With respect to the nature of the “draft decision”, the Court held that the Commissioner drew conclusions and made judgments, legal and moral, about people’s conduct. To publish those findings would effect the reputations of those involved. Contrary to what the delegate concluded, the Court held that the contents of the draft report fell within the type of decision and decision making process that the principle of “deliberate secrecy”, as reflected in section 3(1)(b), was meant to apply. The draft report was “draft decision” for the purposes of section 3(1)(b).

The Court was therefore satisfied that the incomplete draft report of the Smith Commission was excluded from the scope of the Act by virtue of section 3(1)(b) because it was a draft decision of a person acting in a quasi-judicial capacity. The delegate’s order was set aside.

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