On July 3, 2018, the Supreme Court of British Columbia released its review of United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 170 v. British Columbia (Information and Privacy Commissioner), 2018 BCSC 1080. The Court held that the decision of the Office of the Information and Privacy Commissioner (“OIPC”) on Order F17-16, 2017 BCIPC 17 was unreasonable and remitted the matter back to the OIPC to assign another adjudicator to consider the issue again in a manner consistent with the Court’s reasons.
Background of dispute
In late 2010, the Financial Institutions Commission (“FICOM”) received an access to information request submitted by the Independent Contractors and Business Association (“ICBA”). FICOM released some, but not all, of the information requested by the ICBA, on the basis that disclosure of this information could harm the interests of a third party.
The dispute over the release of this information lasted more than six years, with a group of BC unions and union pension plans objecting to any release of their information. They argued that the disclosure of these records would cause them financial harm and pointed to the ICBA’s past use of this information for the purpose of criticizing pension plans, which could lead to unionized workers leaving to join non-union employers.
On April 10, 2017, the OIPC released a decision requiring FICOM to disclose the information requested by the ICBA. The adjudicator concluded there was not enough evidence to prove there was reasonable expectation of harm to the unions with the disclosure of this information. The union pension plans petitioned the courts to accept that ample evidence had been presented and that the plans were being held to too high a standard regarding required evidence.
Under judicial review, the Court held that the OIPC’s findings were unreasonable and that the petitioners had provided sufficient evidence to satisfy the “reasonable expectation of probable harm” standard that was provided by the Supreme Court of Canada.
Counsel for the petitioning unions and pension plans were Lawson Lundell LLP, with a team including Marko Vesely and Michelle S. Jones; Arsenault Aaron Lawyers, with a team including David Marc Aaron and Bennett M. Arsenault; and Derrill Thompson of Main Street Law Group.
Counsel for the Independent Contractors and Businesses Association was Robert W. Grant, QC, and Joana Thackeray of Gall Legge Grant Zwack LLP.
Counsel for the Office of the Information and Privacy Commissioner for British Columbia was Catherine J. Boies Parker, QC, and Kate Phipps of Arvay Finlay LLP.
Counsel for the Superintendent of Pensions was Sandra Wilkinson of the Ministry of Attorney General, Legal Services Branch.