Docket:
T-511-13
Citation: 2014 FC 1170
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BETWEEN:
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HUSKY OIL OPERATIONS LIMITED
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Applicant
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and
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CANADA-NEWFOUNDLAND
AND LABRADOR OFFSHORE
PETROLEUM BOARD
and
THE INFORMATION COMMISSIONER
OF CANADA
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Respondents
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PUBLIC
REASONS FOR JUDGMENT
(Confidential Reasons for Judgment Issued on December 8, 2014)
HENEGHAN J.
I.
INTRODUCTION
[1]
Husky Oil Operations Limited (the "Applicant") seeks judicial review pursuant to section 44 of the Access to
Information Act, R.S.C. 1985, c. A-1 (the "Access
Act") of a decision of the Canada – Newfoundland and Labrador Offshore
Petroleum Board (the "Board") dated March 6, 2013. In that decision, the Board determined that
certain information was not privileged pursuant to section 119(2) of the Canada
– Newfoundland Atlantic Accord Implementation Act, S.C. 1987, c. 3 (the "Accord Act"). As a result, the Board advised that it would disclose the
information, subject to certain redactions to be made pursuant to paragraph
20(1)(b) and section 19 of the Access Act.
[2]
By Order dated May 3, 2013, the Information
Commissioner of Canada (the "Commissioner")
was added as a Respondent to this proceeding with leave
to serve and file a response to the Applicant’s Motion for a
Confidentiality Order, and to serve and file a Memorandum of Fact and Law.
[3]
On May 27, 2013 a Confidentiality Order was
issued, restricting disclosure of certain information and materials filed in
this application. The Confidentiality Order applies to the information
that is the subject of the within application for judicial review, and any
other material that the Respondent would be authorized to refuse to disclose
pursuant to the Access Act.
[4]
By letter dated April 17, 2014 the Commissioner
advised that she would rely on the written submissions without attending at the
hearing to present oral argument.
II.
BACKGROUND
[5]
The Applicant is a division of Husky Energy,
which is one of Canada’s largest integrated energy companies. It is engaged in
petroleum drilling and extraction in the Newfoundland and Labrador offshore
area. Husky operates offshore drilling rigs, including the “Henry Goodrich.”
[6]
The Board is a statutory body responsible for
the regulation of petroleum drilling and extraction off the coasts of Newfoundland and Labrador. It regulates the activities of operators in the oil and gas
industry, including those of the Applicant.
[7]
The Board received an Access to
Information request (the "Request") dated January 15, 2013 seeking disclosure of “[w]ritten incident notifications and completed incident investigation
reports provided to the [B]oard by the operator of the Henry Goodrich”,
pursuant to the Access Act. The Request sought access to records from April 1,
2012 to December 31, 2012.
[8]
On February 6, 2013 the Board sent a letter to
Husky, advising it about the Request. The Board asked for Husky’s position as
to whether the information should be withheld or redacted pursuant to the
Access Act. The Board attached to the letter certain documents that originated
from, or were of interest to, Husky, and that were relevant to the Request.
[9]
On February 21, 2013 the Board sent a second
letter to Husky, attaching more documents that originated from, or were of
interest to, Husky, and relevant to the Request. Again the Board asked for
Husky’s comments about disclosure of the information.
[10]
Husky responded to the Board’s letter of
February 6, 2013 by a letter dated February 25, 2013. Husky advised that the
incident notifications and incident investigation reports included in the
requested information were provided to the Board pursuant to regulations
enacted under Part III of the Accord Act.
[11]
Husky expressed the opinion that the statutory
privilege created by subsection 119(2) of the Accord Act applied and that none
of the subsection 119(5) exceptions to that privilege were available to allow
disclosure. Husky said that the records should be withheld from disclosure in
their entirety pursuant to subsection 24(1) of the Access Act.
[12]
Husky also expressed the opinion that,
notwithstanding its view that the records were exempt from disclosure in their
entirety, certain portions of the records should be redacted pursuant to
section 23 of the Access Act on the grounds of solicitor-client privilege. As
well, it said that confidential technical information was exempt from disclosure
pursuant to paragraph 20(1)(b) and certain personal information was exempt
pursuant to subsection 19(1). Husky included with this letter a redacted
version of the records sent to it by the Board.
[13]
By letter dated February 26, 2013 Husky
responded to the Board’s letter of February 21, 2013. In this letter Husky repeated
its objections to disclosure and relied on the same statutory provisions to
justify non-disclosure or redaction of the information in issue, as it had
stated in its letter of February 25, 2013.
III.
DECISION UNDER REVIEW
[14]
By letter dated March 6, 2013, the Board
responded to Husky. It determined that the information contained in the disputed
records should be disclosed in large part.
[15]
The Board noted that notwithstanding the fact
that Husky had submitted the documents pursuant to requirements set out in
regulations that had been made under Part III of the Accord Act,
the documents should be disclosed. The Board expressed the opinion that it
would be in the public interest to release the documents, as permitted by
subsection 119(2) of the Accord Act, that is, for the purposes of the
administration and enforcement of Parts II and III of the Accord Act.
[16]
The Board agreed with Husky that certain
information in the documents should be redacted pursuant to section 23, paragraph
20(1)(b) and section 19 of the Access Act. The Board forwarded copies of the
redacted documents that it proposed to disclose. The Board advised the
Applicant that it was entitled to apply to the Federal Court for judicial
review pursuant to subsection 44(1) of the Access Act.
IV.
RELEVANT LEGISLATION
[17]
Section 119(2) of the Accord Act states as
follows:
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119(2) Subject to
section 18 and this section, information or documentation provided for the
purposes of this Part or Part III or any regulation made under either Part,
whether or not such information or documentation is required to be provided
under either Part or any regulation made thereunder, is privileged and shall
not knowingly be disclosed without the consent in writing of the person who
provided it except for the purposes of the administration or enforcement of
either Part or for the purposes of legal proceedings relating to such
administration or enforcement.
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119(2) Sous réserve
de l’article 18 et des autres dispositions du présent article, les
renseignements fournis pour l’application de la présente partie, de la partie
III ou de leurs règlements, sont, que leur fourniture soit obligatoire ou
non, protégés et ne peuvent, sciemment, être communiqués sans le consentement
écrit de la personne qui les a fournis, si ce n’est pour l’application de ces
lois ou dans le cadre de procédures judiciaires relatives intentées à cet
égard.
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[18]
Section 24(1) of the Access Act states as
follows:
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24. (1) The head of
a government institution shall refuse to disclose any record requested under
this Act that contains information the disclosure of which is restricted by
or pursuant to any provision set out in Schedule II.
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24. (1) Le
responsable d’une institution fédérale est tenu de refuser la communication
de documents contenant des renseignements dont la communication est
restreinte en vertu d’une disposition figurant à l’annexe II.
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V.
ISSUES
[19]
This application raises two issues as follows:
1.
What is the appropriate standard of review?
2.
Did the Board commit a reviewable error in
finding that the privilege provided in subsection 119(2) of the Accord Act did
not exempt the documents in issue from disclosure pursuant to subsection 24(1)
of the Access Act?
VI.
SUBMISSIONS
A.
Applicant’s Submissions
[20]
The Applicant argues that the standard of
correctness applies in judicial review of a decision made pursuant to section
44 of the Access Act, relying in this regard upon the decision in Hibernia
Management and Development Co. v. Canada – Newfoundland and Labrador Offshore
Petroleum Board (2012), 407 F.T.R. 293 at paragraph 43.
[21]
The Applicant also submits that the exception to
the right of access that is permitted by subsection 24(1) of the Access Act is
mandatory. Accordingly, the judicial review is a de novo review and the
decision made is owed no deference by the Court.
[22]
The Applicant characterizes this issue as one of
statutory interpretation and argues that the Board incorrectly interpreted subsection
119(2) of the Accord Act as conferring discretion to disclose information, in
the public interest.
[23]
The Applicant submits that the Court is to be
guided in interpreting legislation in accordance with the principles set out in
section 12 of the Interpretation Act, R.S.C. 1985, c. I-21 and in
the decision in Rizzo and Rizzo Shoes Ltd (Re), [1998] 1 S.C.R. 27 at
paragraph 21.
[24]
The Applicant argues that the privilege
conferred by subsection 119(2) of the Accord Act applies to information
provided pursuant to this provision or Parts II and III of the Accord Act. There
is no dispute among the parties that the incident notification reports and
incident investigation reports were provided by the Applicant for the purposes
of Part III of the Accord Act and the regulations made pursuant to that part.
It argues that the statutory privilege in subsection 119(2) applies
specifically to the incident notification and investigation reports.
[25]
Further, the Applicant submits that none of the
exemptions to the privilege apply, noting in particular paragraph 119(5)(g.1), which
allows disclosure of the privileged information relating to accidents,
incidents or petroleum spills.
[26]
In broad terms, the Applicant argues that upon a
contextual analysis, subsection 119(2) of the Accord Act is meant to
encourage witnesses and parties to participate openly in safety investigations.
If Parliament intended to create a public interest discretion to authorize the
disclosure of privileged information, it would have clearly set out such an
exemption.
B.
The Board’s Submissions
[27]
The Board submits that judicial review under the
Access Act is subject to review on the standard of correctness. However,
while it acknowledged that section 24 of the Access Act is a mandatory
exception, it argues that subsection 119(2) of the Accord Act contains an “element of discretion” and that the exercise of that
discretion is reviewable on the standard of reasonableness, on the basis of the
decision in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R.
403 at paragraphs 110-111.
[28]
The Board argues that a party resisting
disclosure bears the burden of showing that disclosure should be withheld and
in meeting that burden must show, on a balance of probabilities, that a statutory
exemption is available. In that regard, the Board relies on the decision in Merck
Frosst Canada Ltd. v. Canada (Health), [2012] 1 S.C.R. 23 at
paragraphs 92 and 94.
[29]
It also submits that the information that is
requested under the Access Act should be withheld only in the most limited and
specific circumstances, relying on the decision in Rubin v. Canada (Minister of Transport) (1997), 221 N.R. 145 at paragraphs 23 – 24 (F.C.A.).
[30]
The Board further argues that subsection 119(2)
of the Accord Act contains an “element of discretion”
that authorizes disclosure notwithstanding the statutory privilege created by
that provision. It submits that the Applicant, in its arguments, ignores
that discretion.
[31]
Describing itself as a safety regulator working
in the public interest, the Board argues that the release of the requested
information informs the public about management of safety issues in the offshore
industry.
[32]
The Board further submits that it exercised its
discretion to release the information in good faith, and without regard to
irrelevant considerations. It claims that its exercise of discretion was
reasonable.
C.
The Commissioner’s Submissions
[33]
The Commissioner argues that a decision made
pursuant to section 24 of the Access Act as to whether information is exempt
from disclosure, is reviewable on a correctness standard. In this regard, she
relies on the decision in Hibernia, supra. She also submits that
the status of the records as privileged, pursuant to subsection 119(2) of the Accord
Act, is likewise reviewable on the standard of correctness.
[34]
The Commissioner submits that the right of
access to government records is quasi-constitutional, protected as a derivative
right of freedom of expression pursuant to the Canadian Charter of Rights
and Freedoms, Part I of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (UK), 1982, c. 11. In this regard, the
Commissioner relies on the decision in Canada (Information
Commissioner) v. Canada (Minister of National Defence), [2011] 2 S.C.R. 306
at paragraph 10.
[35]
The Commissioner argues that the Applicant has
failed to meet its onus of showing that the information must be withheld since
it has relied only on subsection 24(1) to justify non-disclosure. The
Commissioner argues that the Applicant has failed to show that non-disclosure
is warranted under any other provision of the Access Act on which it
relies in its Notice of Application.
[36]
The Commissioner also submits that the Board
correctly determined that the requested information falls within an exception
to the privilege conferred by subsection 119(2) and that consequently, the
Board correctly decided that disclosure was not restricted by subsection 24(1)
of the Access Act.
VII.
DISCUSSION
[37]
This application for judicial review is brought
pursuant to section 44 of the Access Act. The legislative purpose of the Access
Act is to promote disclosure of information in the hands of government
institutions, as provided in subsection 2(1) of that Act.
[38]
According to the Supreme Court of Canada in Dagg
v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 at paragraph 51,
access to information is the general rule under the Access Act. This
presumption in favour of disclosure is, however, subject to specific, necessary
exceptions; see subsection 2(1) of the Access Act.
[39]
The statutory prohibition against disclosure
contained in subsection 24(1) of the Access Act is one such exception. That
provision creates a prohibition against disclosure of information that is “restricted by or pursuant to any provision set out in Schedule
II.”
[40]
Schedule II of the Access Act includes section
119 of the Accord Act, pursuant to an amendment made in subsection 1(2) of the
Revised Statutes of Canada, 1985 c. 3 (3d Supp.).
[41]
In the within matter, the information was
submitted by the Applicant to the Board pursuant to Part III of the Access Act
and the regulations enacted under that Part. I refer to section 76 of the Newfoundland Offshore Drilling and Production Regulations, SOR/2009-316,
which provides as follows:
76(1) The operator
shall ensure that
(a) the Board is
notified of any incident or near-miss as soon as the circumstances permit; and
(b) the Board is
notified at least 24 hours in advance of any press release or press conference
held by the operator concerning any incident or near-miss during any activity
to which these Regulations apply, except in an emergency situation, in which
case it shall be notified without delay before the press release or press
conference.
(2)
The operator shall ensure that
(a) any incident or
near-miss is investigated, its root cause and causal factors identified and
corrective action taken; and
(b) for any of the
following incidents or near-misses, a copy of an investigation report
identifying the root cause, causal factors and corrective action taken is
submitted to the Board no later than 21 days after the day on which the
incident or near-miss occurred:
(i) a lost or restricted workday injury,
(ii) death,
(iii) fire or explosion,
(iv) a loss of containment of any fluid from a well,
(v) an imminent threat to the safety of a person, installation
or support craft, or,
(vi) a significant pollution event.
[42]
The first issue to be determined is the
applicable standard of review.
[43]
Both the Applicant and the Commissioner submit
that the Board’s decision is reviewable on the standard of correctness; they
characterize the threshold question as being one of statutory interpretation.
[44]
The Board, on the other hand, advocates that the
decision is reviewable on the standard of reasonableness because it argues that
the relevant statutory provision provides discretion in the matter of ordinary
disclosure of the documents in issue. It submits that disclosure of documents
for the purposes of administration and enforcement is an exception to the
mandatory privilege under subsection 119(2).
[45]
In my opinion, the applicable standard of review
in this case is correctness on the ground that the jurisprudence has
already established correctness as the prevailing standard of review. In this
regard, I refer to the decisions in Hibernia, supra, and Oceans
Ltd. v. Canada-Newfoundland & Labrador Offshore Petroleum Board (2009),
356 F.T.R. 106 at paragraph 13.
[46]
In Hibernia, supra the Court said
the following at paragraph 45:
45. In the case at bar, all the claimed bases
of exemption are mandatory in nature. The jurisprudence is well established
that the Court should not show deference to a board’s decision on whether or
not a given document is included in a mandatory statutory disclosure exemption.
The Court should therefore review this matter on a standard of correctness (see
Thurlow v. Canada (Solicitor General), 2003 FC 1414, [2003]
F.C.J. 1802 (F.C.) at paragraph 28; Provincial Airlines Ltd. v. Canada (Attorney General), 2010 FC 302, [2010] F.C.J. No. 994 (F.C.) at
paragraphs 17 and 18). If the Court does not agree with the Board’s decision,
it must substitute its own view and provide the correct answer (see Dunsmuir
above, at paragraph 50).
[47]
I do not accept the Board’s argument that
subsection 119(2) of the Accord Act contains an “element
of discretion.” The determination of whether information falls within
subsection 119(2) of the Accord Act, that is information to be disclosed for
the purposes of administration and enforcement of that Act, is a factual
determination, not a discretionary one. The exemption from disclosure found at
subsection 24(1) of the Access Act is mandatory. I conclude that the applicable
standard of review in this case is correctness.
[48]
The dispositive issue in this application is
whether the Board erred in its interpretation of subsection 119(2) of the
Accord Act.
[49]
The task of statutory interpretation is governed
by section 12 of the Interpretation Act, supra, which provides as
follows:
12. Every enactment is deemed remedial, and
shall be given such fair, large and liberal construction and
interpretation as best ensures the attainment of its objects.
[50]
The direction given by section 12 of the Interpretation
Act is supported by the decision of the Supreme Court of Canada in Rizzo,
supra where the Court said the following at paragraph 21:
Although much has been written about the
interpretation of legislation…Elmer Driedger in Construction of Statutes (2nd
ed. 1983) best encapsulates the approach upon which I prefer to rely. He
recognizes that statutory interpretation cannot be founded on the wording of
the legislation alone. At p. 87 he states:
Today there is only one principle or
approach, namely, the words of an Act are 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.
[51]
This approach has been followed in more recent
decisions of the Supreme Court of Canada, including 65302 British Columbia
Ltd. v. Canada, [1999] 3 S.C.R. 804 at paragraph 5 and Canada
Trustco Mortgage Co. v. Canada, [2005] 2 S.C.R. 601 at paragraph 10.
[52]
Determination of what is required for the
“purposes of administration and enforcement” of
the Accord Act must begin with consideration of the objectives of the Act. The
preamble of the Accord Act reads in part, as follows:
Whereas the Government
of Canada and the Government of Newfoundland and Labrador have entered into the
Atlantic Accord and have agree that neither Government will introduce
amendments to this Act or any regulation made thereunder without the consent of
both Governments:
[53]
“Atlantic Accord” is defined in section 2 of the Accord Act as follows:
“Atlantic Accord”
means the Memorandum of Agreement between the Government of Canada and the
Government of the Province on offshore petroleum resource management and
revenue sharing dated February 11, 1985, and includes any amendments thereto;
[54]
The preamble and this definition, when read
together, provide that the objectives of the Accord Act are to regulate the
exploration, exploitation, management, and revenue sharing relating to the
petroleum resources off the coasts of Newfoundland and Labrador.
[55]
The terms of the Accord Act must be approached
from the perspective of giving effect to these objectives.
[56]
Subsection 119(2) of the Accord Act, on its
face, creates a privilege against disclosure, except as otherwise provided. Prima
facie, that privilege applies to the records in question and exempts them
from disclosure.
[57]
In general, “privilege” in the context of
litigation, is a protection against the disclosure of information. It is
an exclusionary rule that is based “upon social values,
usually external to the trial process”; see John Sopinka et al. The
Law of Evidence in Canada, 4th ed. (Markham: LexisNexis Canada Inc., 2014) at
paragraph 14.1 at 917.
[58]
The common law recognizes privilege for
communications between solicitor and client. Legislation has established
privilege for spousal communications, and others, such as doctor and patient
and clergy and parishioner; see the decision in Blank v. Canada (Department of Justice), [2006] 2 S.C.R. 319 at paragraphs 24-26. See also section 4(3)
of the Canada Evidence Act, R.S.C. 1985 c. C-5; R v. Couture, [2007]
2 S.C.R. 517 at paragraph 41; and the Medical Act, CQLR c. M-9 s. 42.
[59]
The jurisprudence has established that the
public has a real and important interest in having access to information
relative to safety in the offshore industry and the Board’s fulfillment of its
mandate; see the decision in Hibernia, supra.
[60]
The Board has not shown that exemption of the
information from the benefit of the privilege would be necessary for the
purposes of administration or enforcement of the Accord Act. The interpretation
of that provision, as submitted by both the Board and the Commissioner, would
effectively create a public interest discretion which is not found in
the Accord Act.
[61]
The safe pursuit of offshore exploration
activities is part of the Board’s mandate, and is specifically addressed
in section 135.1 of the Accord Act. However, the disclosure of information in
response to a request made under the Access Act, allegedly to increase public
awareness about safety measures undertaken or monitored by the Board, is not
justified by a plain reading of subsection 119(2).
[62]
In Canada (Information Commissioner) v.
Canada (Minister of National Defence), [2011] 2 S.C.R. 306 at paragraph 40,
the Supreme Court of Canada said that notwithstanding the quasi-constitutional
status of the Access Act, the general principles of statutory interpretation
still apply. In interpreting legislation, the Court cannot disregard the actual
words chosen by Parliament, nor can it re-write the legislation to accord with
its view of how the legislative purpose could have been better promoted.
[63]
I acknowledge that the public interest is a
concern in determining whether information should be exempt from disclosure in
this context. The Access Act is intended to facilitate public access to
information held by the government institutions. The Access Act is public
interest legislation, insofar as it is supposed to help facilitate democracy;
see the decision in Dagg, supra at paragraph 61.
[64]
In exempting information from disclosure, the
business, privacy or other interests that are at stake must be weighed against
the public interest in favouring disclosure. The public interest per
se, however, cannot override the express language of a statute. I agree
with the submissions of the Applicant that if Parliament had intended to confer
a broad public interest discretion, it would have done so in clear terms.
[65]
I note that in other legislation where
Parliament intended to create discretion to disclose privileged information on
the basis of public interest, it has done so using clear and express language. I
refer, as an example, to paragraph 28(6)(c) of the Canada Transportation
Accident Investigation and Safety Board Act, S.C. 1998 c. 10, which permits
disclosure of privileged information where “the court or
coroner concludes in the circumstances of the case that the public interest in
the proper administration of justice outweighs the importance of the
privilege.”
[66]
In my opinion, if Parliament had intended to
include a public interest override for the statutory privilege in subsection 119(2)
of the Accord Act, it would have done so in clear terms, as it has in the Canada Transportation and Accident Investigation and Safety Board Act,
supra.
[67]
Rather than a broad public interest discretion, in
my opinion Parliament created a limited exception to the privilege established
by subsection 119(2) of the Accord Act. The provision requires a factual
determination; if disclosure is required for the purposes of administration and
enforcement of Parts II or III of the Accord Act, it is permitted. If disclosure
it is not required for such purposes, it is not allowed.
[68]
Part II of the Accord Act is entitled “Petroleum Resources” and relates to the issuance of interests,
exploration licences, drilling orders, discovery licences, and the
registration, transfer and assignment of such licences, among other things.
Part III is entitled “Petroleum Operations”, and
addresses the establishment of various supervisory and advisory boards and
committees, safety considerations, waste, spills and enforcement mechanisms.
[69]
It is important to highlight that disclosure,
within the scope of subsection 119(2), would be for the purposes of “administration or enforcement” of the Accord Act, not
the Access Act. The exception in subsection 119(2) does not apply to permit
disclosure for the purposes of administration of any act other than the Accord
Act. The Board cannot invent a public interest exception when the statutory
language does not establish such an exception.
[70]
The words “administration
and enforcement” are not defined in the Accord Act. The words must be
interpreted in the context of the Board’s functions under the Accord Act, and
specifically in relation to Parts II and III of that Act.
[71]
The Board’s general mandate is established in
Part I of the Accord Act. Pursuant to subsection 17(1), the Board must perform
the duties and functions that are conferred or imposed upon it by either the
Atlantic Accord agreement or the Accord Act.
[72]
In my opinion, “administration”
means the routine, quotidian tasks that are necessary to give effect to the
regulatory scheme set out in Parts II and III of the Accord Act; see the
decision in Michelin North America (Canada) Inc. v. Ace Ina Insurance
(2008), 69 C.C.P.B. 207 (Ont. Sup Ct.) where the Court said the following at
paragraph 44:
It is clear that “administration” involves acts
incurred in respect of relatively routine, ministerial or clerical acts…
The definition of “administration” does not include discretionary
management decisions.
[73]
Similarly, “enforcement”
refers to specific actions, such as orders, directions and investigations, which
are required by the Board to implement the terms and objectives of the Accord
Act.
[74]
In Chrysler Canada Ltd. v. Canada
(Competition Tribunal) (1990), 31 C.P.R. (3d) 510 at 516 (F.C.A.), the
Federal Court of Appeal interpreted the words “the
enforcement of its orders” as referring to the enforcement of orders to
ensure that applications were disposed of in a rational and fair manner. This
interpretation suggests that like “administration”,
“enforcement” in the context of the Accord Act also refers to specific
actions that the Board may take to carry out its function.
[75]
The French version of subsection 119(2) of the
Accord Act provides that the reports “sont…protégés et ne peuvent, sciemment, être communiqués sans le
consentement écrit de la personne qui les a fournis, si ce n’est pour
l’application de ces lois
[emphasis added]…”
[76]
In R c. Bois, [2004] 1 S.C.R. 217, the
Supreme Court of Canada discussed the principles applicable to the interpretation
of bilingual legislation. In that decision, the Court adopted the analysis
proposed by Professor Côté in The Interpretation of Legislation in Canada, 3rd
ed. (Scarborough: Carswell Thompson Professional Publishing, 2000), which
proposes that differences between versions of the same legislation should be
reconciled by adducing the meaning common to both; see paragraph 26 of Bois,
supra.
[77]
According to Le Robert & Collins 8th ed., “application” is defined as follows:
(= mise en
pratique); (gén) application; [de peine] enforcement; [de règlement,
décision] implementation ; [de loi] enforcement, application; [de
rèmede] administration.
[78]
The use of “ces” relative to the
word “lois” is a demonstrative adjective that means “these”; see Le Robert
& Collins, supra, sub verbo “ce”. It is used to
designate something or someone that is specifically mentioned, in this case,
the provisions of Parts II and III of the Accord Act, and any regulations made
pursuant to those Parts.
[79]
In my opinion, the French version of subsection
119(2) of the Accord Act supports the interpretation of that section as
permitting disclosure of privileged information only where such disclosure is
required to implement, apply, or give effect to the specific provisions of the regulatory
scheme established by the Accord Act and its regulations.
[80]
Division III in Part III is entitled “Appeals and Administration” and consists of sections
184-205. Section 188 of the Accord Act states that the Board may appoint safety
and conservation officers necessary for the administration and enforcement of
that part of the Accord Act. Included in the powers of these officers is the
ability to require the production of any books, records, documents, licences,
or permits; see subsection 189(d) of the Accord Act.
[81]
Pursuant to subsection 193(1) of the Accord Act,
these officers may also order the cessation of unsafe operations. Such orders
are reviewable by the Chief Safety Officer under the Accord Act, and may also
be referred to a provincial court judge in the jurisdiction closest to the area
where the operations are being carried out; see subsections 193(4) and (5).
[82]
In my opinion, these prescribed duties and
powers are the types of administrative and enforcement activities that may
require disclosure of privileged information as contemplated by subsection
119(2) of the Accord Act.
[83]
I acknowledge that safety is a concern of the
Board, and that there is a public interest in the safe operation of offshore
petroleum operations. However, the public interest alone does not justify
disclosure of reports and information generated by offshore petroleum
operators. Subsection 119(2) establishes a privilege against disclosure, unless
disclosure is required for the administration and enforcement of the Accord Act.
The Board’s interpretation of subsection 119(2) of the Accord Act arises from
an overly broad reading which the language of that provision cannot bear. The
Applicant is not generally accountable to the public and is entitled to the
protection of both the Access Act and the Accord Act.
[84]
In my opinion, the Board has erred in its
interpretation of subsection 119(2) of the Accord Act, and the application for
judicial review will be allowed.
[85]
The decision of the Board is set aside and pursuant
to subsection 24(1) of the Access Act, the Board shall not disclose the records
in issue.
[86]
The Applicant is entitled to its taxed costs.
[87]
The parties shall advise the Court within
fourteen (14) days as to what redactions, if any, are required before Public
Reasons are released.
“E. Heneghan”
Vancouver, British Columbia
December 19, 2014
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