Supreme Court justice rules that court can review decision of information commissioner

Rob Antle
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Peter McBreairty

ST. JOHN'S - A Newfoundland and Labrador Supreme Court justice has ruled that his court has jurisdiction to review a decision by the province's information commissioner.

Justice Alan Seaborn made the ruling this week, in conjunction with a lawsuit filed by a Corner Brook couple.

Peter and Eileen McBreairty sued then-information commissioner Phil Wall last year.
Wall had informed the McBreairtys that his office would accept no more complaints from the couple until his office resolved the 26 active probes their requests had already generated.

The McBreairtys made a total of 55 requests for review to the commissioner's office over a 2-1/2 year period between early 2005 and mid-2007. About half of those were resolved by the commissioner.

The requests mainly involved decisions by the College of the North Atlantic, with whom the McBreairtys were involved in an employment dispute.

This week's court ruling dealt with a preliminary issue - whether the court had jurisdiction to review the commissioner's decision.

Lawyers for the commissioner's office argued the law says that officials are permitted, but not required, to conduct such reviews upon request. They also contended that House of Assembly privileges extended to the commissioner's office, exempting the decision from review by the court.

Seaborn disagreed.

The commissioner's role, in these circumstances, does not bring him "within the sphere of legislative or parliamentary privilege," the judge ruled.

"The commissioner's role in providing an independent review of decisions made by public bodies on requests for access to records is not one that impacts the discharge of the functions of the House of Assembly," Seaborn wrote in his decision.

"The activities of the commissioner as it relates to requests for review can be dealt with by the ordinary laws of the land … without interfering with the legislature's ability to fulfil its constitutional functions."

For those reasons, Seaborn ruled his court had jurisdiction over the matter.

Peter McBreairty said he welcomed the judge's decision.

"The principles underlying this case are very important and I was not willing to allow the commissioner to set aside my rights under the legislation," McBreairty said in an e-mailed statement. "One of the main issues here which has not been addressed by the (commisioner's office) is the continued, year-after-year non-compliance of a public body with the legislation."

But new information commissioner Ed Ring stressed that his office will continue to contest the McBreairtys's legal claim.

"In no way did the commissioner's office feel or indicate that these individuals were vexatious or anything like that," Ring said from Victoria, B.C., where he is attending a conference. "It's just that the volume of work that the office was handling by two particular appellants was overwhelming the office, and to a large degree preventing the office (from) providing a level of service, in a timely and efficient matter, to the remainder of the province."

The information commissioner is an independent officer of the House, responsible for protecting and upholding access to information and protection of privacy rights.

Organizations: College of the North Atlantic, Supreme Court

Geographic location: ST. JOHN'S, Corner Brook, Victoria

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