The Canadian Broadcasting Corporation and the Edmonton Journal Group (the “Media Intervenors”) were successful in their appeal from the chambers judge’s decision to quash the decision of an inquiry judge granting “interested person” status to the media in a fatality inquiry. The Court of Appeal held that the chambers judge did not appropriately apply the reasonableness standard in reviewing the inquiry judge’s decision and instead substituted his own opinion for that of the inquiry judge.

Administrative law – Freedom of information and protection of privacy – Media access to hearings – Hearings – In camera hearings – Judicial review – Administrative decisions – Appeals – Standard of review – Reasonableness simpliciter – Remedies – Certiorari

Wasylyshen v. Wenden (Appeal by Canadian Broadcasting Corp.), [2005] A.J. No. 710, Alberta Court of Appeal, June 1, 2005, Hunt, Ritter JJ.A. and Smith J.

In September 1999, two men fell to their deaths from the fourth floor balcony of an apartment building during the execution of a police search warrant. A public fatality inquiry was called under the Fatal Inquiries Act, R.S.A. 2000, c. F-9 (the “Act”). During the inquiry, the inquiry judge ordered that part of the hearing take place in camera pursuant to section 41 of the Act. The Media Intervenors applied under section 49(2)(d) of the Act for “interested person” status which would allow them to be present during in camera portions of the inquiry and to cross-examine witnesses. The inquiry judge granted the Media Intervenors “interested person” status, as he accepted the argument that the public interest should be represented at the in camera session by interests outside those connected to the justice system and he further accepted that the presence of the media counsel could result in a more vigorous testing of the evidence. The Chief of Police applied for judicial review seeking an order in the nature of certiorari to quash the inquiry judge’s decision.

On judicial review, the chambers judge concluded that the appropriate standard of review was reasonableness simpliciter. The chambers judge concluded that the inquiry judge’s decision was unreasonable for many reasons including:

1. the granting of interested party status was really for the purpose of compensating for the inquiry judge’s previous decision to go in camera and the media’s application was a collateral attack on that decision;
2. the inquiry judge did not explain why this inquiry was unique;
3. the decision did not consider whether the Legislature ever considered handing over to the media the role of primary advocate of the public interest at an inquiry; and
4. no authority was given for such a result having ever been achieved elsewhere in Canada.

The Media Intervenors appealed the decision of the chambers judge.

The Court of Appeal agreed with the chambers judge that reasonableness simpliciter was the appropriate standard of review. However, the Court found that the chambers judge did not appropriately apply the reasonableness standard and strayed far from the reasons of the inquiry judge in substituting his own opinion for that of the inquiry judge. The Court of Appeal found that the inquiry judge’s decision was reasonable and had tenable reasons to support the conclusions reached. It was not unreasonable to conclude that respect for the inquiry outcome would be enhanced by granting interested party status to the media. The inquiry judge was uniquely positioned to determine whether granting interested party status to the media would improve public perceptions about the openness of the inquiry.

In the result, the appeal was allowed.

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