



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



Guide
                Outfitters Assoc. v.

British
                Columbia (Information and Privacy Commissioner),









2004 BCCA
            210




Date: 20040416





Docket: CA030285

Between:

Guide Outfitters
      Association of British Columbia,
Peter Klaui and Brian Swift

Appellants

(Respondents on Cross-Appeal)

(
Petitioners
)

And

Information
      and Privacy Commissioner of the Province of British Columbia, Raincoast
      Conservation Society, Environmental Investigation Agency,
Minister of Water, Land and Air Protection and
the Attorney General of British Columbia

Respondents

(Appellants on Cross-Appeal)

(
Respondents
)












Before:



The Honourable
            Mr. Justice Hall





The Honourable
            Mr. Justice Low





The Honourable
            Mr. Justice Lowry









T.L. Robertson, Q.C. and
L.C. Zee



Counsel for the Appellants





S.E. Ross



Counsel for the Respondent
Information and Privacy Commissioner of B.C.





N.E. Brown
            and
J.M. Tuck



Counsel for the Respondent
Minister of Water, Land and Air Protection and Attorney General of
              British Columbia





R.L. Christensen



Counsel for the Respondent
Raincoast Conservation Society







Place and
            Date of Hearing:



Vancouver, British Columbia





22 January 2004





Place and
            Date of Judgment:



Vancouver, British Columbia





16 April 2004









Written
              Reasons by
:





The Honourable
            Mr. Justice Hall





Concurred
              in by:





The Honourable
            Mr. Justice Low

The Honourable
            Mr. Justice Lowry





Reasons for Judgment of the Honourable Mr. Justice Hall:

[1]

This
        case involves grizzly bear hunting in the province of British Columbia.  Certain
        persons and groups are opposed to the continuation of the hunt, and over
        the past decade there have even been incidents where confrontations and
        threats of violence have occurred.  The appellant (respondent on cross-appeal)
        Guide Outfitters Association of British Columbia ("Guide Outfitters")
        is generally in favour of the continuation of the hunt; the respondent
        (appellant on cross-appeal) Raincoast Conservation Society ("Raincoast")
        is generally not in favour of the continued hunting of the grizzly.  In
        the middle of this controversy is the Ministry of Water, Land and Air Protection,
        formerly the Ministry of Environment, Lands and Parks (the "Ministry").  The
        respondent (appellant on cross-appeal) Information and Privacy Commissioner
        of the Province of British Columbia (the "Commissioner"), became
        involved because of an impasse reached between Raincoast and the Ministry
        concerning the scope or level of information that the Ministry was prepared
      to release about kills of bears by hunters.

[2]

These
        proceedings have a fairly lengthy and somewhat tangled history.  Although
        the roots of the controversy go back many years, the current proceedings
        have their origin in an information request forwarded by Raincoast and
        a British environmental association, the Environmental Investigation Agency
        ("EIA"), in the early part of April 2000.  The request for
        records disclosing the physical locations where grizzly bears had been
        killed as
        a result of sport hunting was filed under the
Freedom of Information
        and Protection of Privacy Act
, R.S.B.C. 1996, c. 165 (the "
Act
").  Under
        Schedule 1 of the
Act
the Ministry is a defined public body
        and, pursuant to the provisions of s. 4 of the
Act
, a person
        who makes a request has a right of access to any record in the custody
        or under the control of such an organization subject to certain exceptions
      contained in ss. 12 to 22.1 of the
Act
.

[3]

The
        Ministry collects kill data concerning grizzly bears killed by hunters
        under a mandatory reporting system established pursuant to the
Wildlife
        Act
, R.S.B.C. 1996, c. 488.  Hunters are required to within 15
        days after the kill report information about the location as well as the
        species and sex of the animal killed.  This information is then placed
        on a mapping system used by the Ministry.  The Ministry uses a tracking
        system called the Universal Transverse Mercator ("UTM").  The
        province of B.C. is divided by the Ministry into approximately 225 management
        units, some being in excess of 24,000 square kilometres.  By the use of
        the UTM system and grid coordinates on the map, the Ministry is able to
        identify the site of a kill location to an accuracy of about one kilometre.  Hunters
        have been advised that the information they supply will be kept confidential
        by the Ministry.  The representatives of the Ministry throughout these
        proceedings have taken the position that they wish to preserve a measure
        of confidentiality about this information because they have apprehensions
        that, if too detailed information is released into the public domain,
        it could impair the efficacy of the continued gathering of accurate information
      from hunters concerning the sites of bear kills.

[4]

In
        May 2000 the Ministry provided to Raincoast (and presumably to EIA) certain
        grizzly bear kill location information.  Information was given about what
        management unit kills had occurred in, but more precise information specifying
        the UTM zone, coordinates, and a precise geographic description of the
        kill location was not furnished.  In refusing to release more detailed
        information about the site of grizzly bear kills, the Ministry relied
      upon the provisions of s. 18(b) of the
Act
, which provides:

18    The head of
        a public body may refuse to disclose information to an applicant if the
        disclosure could reasonably be expected to result in damage to, or interfere
      with the conservation of,

. . .

(b)   an endangered,
        threatened or vulnerable species, subspecies or race of plants, vertebrates
      or invertebrates...

[5]

Raincoast
        and EIA were not content with the extent of the disclosure made to them
        by the Ministry and, pursuant to s. 52 of the
Act
, in June
        of 2000 they made a request to the Commissioner to review the response
        that the Ministry had made to their access requests.  Section 52(1) of
      the
Act
reads as follows:

A person who makes a request to the head of a public body, other than
        the commissioner or the registrar under the
Lobbyist Registration Act
,
        for access to a record or for correction of personal information may ask
        the commissioner to review any decision, act or failure to act of the head
        that relates to that request, including any matter that could be the subject
      of a complaint under section 42(2).

[6]

Pursuant
        to the provisions of s. 55 of the
Act
, the Commissioner
        invoked a mediation process to endeavour to settle the differences between
        the
        applicants seeking the information and the Ministry.  But that proved to
        be an unsuccessful process.  Since the matter could not be settled by
        mediation, the Commissioner thereafter proceeded to conduct an inquiry
        as required
        by s. 56(1) of the
Act
.  The undertaking of this process
        brought into play ss. 54, 56(3), (4), and (5) of the
Act
.  Those
      sections are as follows:

54
On receiving a request for a review,
      the commissioner must give a copy to

(a)   the head of the public body concerned, and

(b)   any other person that the commissioner considers appropriate.

56
(3) The person who asked for the review,
        the head of the public body concerned and any person given a copy of the
        request for a review must be given an opportunity to make representations
      to the commissioner during the inquiry.

(4)   The commissioner
      may decide

(a)   whether representations are to be made orally or in writing, and

(b)   whether a person is entitled to be present during or to have access
        to or to comment on representations made to the commissioner by another
      person.

(5)   The person who asked for the review, the head of the public body
        concerned and any person given a copy of the request for a review may
      be represented at the inquiry by counsel or an agent.

[7]

By
        the provisions of s. 57 of the
Act
, at any inquiry the onus
        lies upon the public body, in this case the Ministry, to establish that
      an applicant has no right of access to the requested information.

[8]

On
        23 October 2000 the Commissioner caused notice of written inquiry to
      be given to Raincoast, EIA, and the Ministry.  He informed the parties
      that on 15 November 2000 he would conduct a written inquiry under s. 56
      of the
Act
.  The
        notice advised that the parties who had been given notice would be entitled
        to make written submissions to the Commissioner.  The Commissioner further
        gave notice that at the inquiry the Commissioner would review the Ministry's
        invocation of s. 18(b) of the
Act
to protect information
        disclosing the exact kill locations of grizzly bears for the years 1975
        to 1999.  The Ministry summarized its position as follows in its written
      material:

4.23  The Public Body submits that the head of the Public Body was authorized
        under section 18 to refuse to disclose the information at issue in this
        inquiry.  The Public Body submits that the evidence demonstrates that any
        public disclosure of such information would be harmful to both the conservation
        of grizzly bears and other vulnerable vertebrates and harmful to the preservation
        of a workable system of accurate hunter reporting.  The Public Body submits
        that this is exactly the sort of information that section 18(b) of the
      Act was intended to protect....

[9]

Considerable
        affidavit material putting forward differing points of view of a number
        of experts enlisted on behalf of Raincoast and EIA on one hand, and the
        Ministry on the other hand, was placed before the Commissioner.  Although
        no member of Guide Outfitters or Guide Outfitters itself was given notice
        pursuant to s. 54 of the
Act
, or invited to formally participate
        as a party in the proceedings before the Commissioner, steps had been
        taken to obtain information from Mr. Dale Drown, general manager of Guide
        Outfitters.  Mr.
        Drown furnished an affidavit to be used in the proceedings before the Commissioner.  Included
      in Mr. Drown's affidavit sworn 10 November 2000 are these paragraphs:

14.   Resident hunters
        and guide outfitters have, to date, been confident in the Ministry's ability
        to keep specific kill location data confidential.  My belief, and a common
        concern amongst hunters, is that disclosure of specific harvest locations
        could reasonably be expected to result in interference or harassment
      by members of environmental activist groups.

15.   As mentioned, I fail to understand why anyone outside of the Ministry
        would need access to the requested Information.  My understanding is that
        applicants already have access to the number of animals hunted in specific
        management units, along with the date of the kill and the age and sex of
        the bear.  In order to scrutinize the effectiveness of the Ministry's conservation
        efforts that is all the information one needs, in conjunction with the
        estimated overall number of bears.  One does not need to access specific
      kill locations.

[10]

It
        would be fair to say that the position advanced in the affidavit of Mr.
        Drown was generally supportive of and in congruence with the position
      advanced before the Commissioner on behalf of the Ministry.  Both were opposed to
        the release of more detailed information.  Affidavit material in opposition
        to the position of the Ministry and Guide Outfitters was put forward
        on behalf of Raincoast and EIA by the methodology of,
inter alia
,
        an affidavit from Mr. Wayne McCrory, a registered professional biologist.  He
      deposed this in his affidavit sworn 14 November 2000:

13.   As a professional
        wildlife scientist, I have never encountered any scientific evidence
      or reference to scientific evidence demonstrating that the public disclosure
      of mortality locations poses any threat to grizzly bears or their populations.

14.   Early in
        my career (1966), I had a hunting guide licence and a hunting area for
        grizzly bear hunters etc.  I have also in the past hunted for bears, and
        was a big game hunter for over 20 years.  In my experience, local bear
        hunters, poachers, and guides for non-resident hunters have intimate knowledge
        of the best locations to kill bears, which is why kills are often concentrated.  Moreover,
        such information is usually readily available from local sources including
        residents who do not hunt bears, but who know where most of the bears
      are hunted.

15.   Unlike
        locally available anecdotal information, grizzly kill location data is
        not presented in a form that is readily useful to those intent on illegal
        hunting.  Kill location data must be converted to a grid, which must then
        be superimposed over maps containing landscape data.  This requires technical
        expertise and access to mapping resources.  Moreover, kill location data
        does not contain the information about access trails, landmarks, local
      feeding areas and animal habits that is important for a hunter.

16.   In my professional opinion, the release of this
        grizzly bear kill location information would not pose a risk to grizzly
        bear populations.  In fact, the release of this information would be
        of considerable assistance to scientists who are working to ensure the
        viability
      of grizzly bear populations.

[11]

The
        hearing and decision process was delayed somewhat when, in February of
        2001, the Commissioner queried the parties as to whether the inquiry
      might have become moot as the result of an announced three year moratorium
      on
        grizzly bear hunting by the then government of B.C.  The parties seeking
        the information advised they did not consider the inquiry to be moot and,
        in any event, a change of government in Spring 2001 resulted in the revocation
        of the previously announced moratorium.  After hearing further submissions
        made by the parties in 2001, on 3 December 2001 the Commissioner issued
        his decision under order 01-52 ("Order 01-52").  The decision
      is summarized as follows:

Applicant conservation groups requested access to records disclosing
        the geographic locations of grizzly bear kills since the Ministry began
        keeping such records.  One applicant sought only hunting kill locations.  The
        other applicant sought both hunting and non-hunting kill locations.  The
        Ministry disclosed the Ministry's geographic wildlife management units
        in which each kill occurred, as well as the date and type of kill, and
        the sex, maturity and age of the animal, where recorded, but concluded
        that, if the Ministry could not ensure the confidentiality of more specific
        kill location data, hunting regulations and grizzly bear management strategies
        could be compromised and hunters would no longer provide detailed kill
        data.  The Ministry is not authorized by s. 18(b) to refuse to disclose
        more specific kill location data as it has not established that disclosure
        could reasonably be expected to damage grizzly bears or interfere with
      their conservation.

[12]

Following
        this decision of the Commissioner, the Ministry filed an application for
      judicial review of Order 01-52 on 2 January 2002.

[13]

In
        April of 2002, before the Ministry's judicial review application could
        be heard in the B.C. Supreme Court, the present appellants also filed
      an application for judicial review.  The basis for their application was that
        they had not been invited to or allowed to participate in the proceedings
        before the Commissioner.  They submitted that this resulted in a breach
        of natural justice.  In order to forestall any question being raised concerning
        the exhaustion of remedies, the appellants applied to the Commissioner
        in early May 2002 asking that the inquiry be re-opened to allow them to
        put forward arguments against the release of more detailed information
        about bear kills.  Ultimately, they sought the same general relief as did
        the Ministry.  However, they asserted that their interests were somewhat
        different from those of the Ministry and that they therefore ought to
        be allowed to make submissions on this subject pursuant to other sections
      of the
Act
.

[14]

On
        10 May 2002 the Commissioner, having reconsidered his earlier decision
        in light of new submissions made by the appellants, declined to re-open
        the inquiry.  He concluded that it had not been necessary for him to
        either notify the appellants concerning the earlier review and inquiry
        process
      or to allow them to participate in a formal way.

[15]

The
        judicial review applications brought by the appellants and the Ministry
        came on for hearing in the Supreme Court before Satanove J.  Satanove J.
        dismissed the application for judicial review brought on behalf of the
        Ministry, but she allowed in part the application for judicial review brought
        by the appellants.  She found that there had been a breach of natural justice
        by reason of the failure of the Commissioner to include the appellants
        as participants in the inquiry process.  She directed that the matter should
        be remitted to the Commissioner in order to allow him to consider further
        material and submissions on behalf of the appellants concerning economic
        issues and safety issues relating to the hunting of grizzly bears.  The
        chambers judge found that the appellants would bring a different perspective
        to the matters that were at issue before the Commissioner on his inquiry.  She
        observed that the perspective of the appellants would not necessarily coincide
        with that of the Ministry or be expected to be brought forward by the Ministry.  However,
        the chambers judge concluded that everything had been argued that could
        usefully be argued before the Commissioner under the provisions of s.
        18(b) of the
Act
.  Her order did not permit the appellants to make
        further submissions relating to s. 18(b).  She thus granted some but
        not all of the relief that had been sought on judicial review by the
      appellants.

[16]

As
        I noted, the proceedings in this case have taken somewhat more than the
        usual time, partly because of the issue of mootness raised at the inquiry
        stage arising out of a temporary moratorium, and thereafter by reason
      of the involvement of the appellants, who had come into the proceedings
      only
        at the judicial review stage.  As matters stood after the judgment of
        Satanove J., delivered on 11 October 2002, there was an order directing
        the Commissioner
        to conduct what I might term a partial review of Order 01-52 in order
        to afford the appellants an opportunity to address those issues that
        they
        considered could have an impact on their interests if the more detailed
        bear kill information sought by Raincoast and EIA should be disclosed
      pursuant to Order 01-52.

[17]

However,
        the case did not thereafter proceed back for this review before the Commissioner.  At
        this point, the Ministry elected not to appeal from the order of Satanove
        J. dismissing its application for judicial review.  The appellants, however,
        were not content with the scope of the order granted by the chambers judge
        on their application for judicial review.  They filed an appeal in this
        Court on 7 November 2002.  The gravamen of their appeal is that they
        ought not to be fettered in placing material before or in making argument
        before
        the Commissioner concerning conservation issues pursuant to the provisions
      of s. 18(b) of the
Act
.

[18]

Consequent
        upon the filing of that appeal, notices of cross-appeal were filed on
      behalf of the Commissioner and Raincoast.  The gravamen of the cross-appeals is
        that the chambers judge erred in partially allowing the application for
        judicial review brought by the appellants.  The Commissioner and Raincoast
        submit that the chambers judge failed to properly conduct the required
        standard of review analysis of the Commissioner's original determination
        and, as well, adopted an erroneous standard of review of his decision in
        any event.  Counsel for the Commissioner and for Raincoast submit that
        the decisions of the Commissioner relating to notice, participation,
        and ordering disclosure of information were decisions within his jurisdiction,
        were reasonable, and the learned chambers judge thus ought to have dismissed
      the application for judicial review brought on behalf of the appellants.

[19]

When
        this appeal came on for hearing before this Court, counsel for the appellants
        sought to tender the affidavit of Dr. Peek, Professor Emeritus of Wildlife
        Resources at the University of Idaho.  His affidavit had annexed to it
        a copy of a final report dated 6 March 2003.  This report involved a review
        undertaken by an independent scientific panel concerning the management
        of grizzly bears in British Columbia.  Contained in that material is
        the following paragraph that appears to be directed to the issue of whether
        the release by the Ministry of more detailed information about bear kills
        might in the future discourage the obtaining of detailed and useful data
      from hunters about the location of bear kills:

Although kill locations may be useful data, they are data that must be
        obtained directly from hunters.  Hunters may be reluctant to provide this
        information accurately if they believe it will result in attracting more
        hunters to their hunting areas, or if it will be used by those opposed
        to hunting to highlight potential areas of over-harvest.  To the degree
        that hunters have this motive for misrepresenting the locations of their
        kills, then kill location data will be seriously compromised, and the data
        will be useless or, worse, misleading.  It may be preferable to ask hunters
        to report their kill locations to small geographic areas (portions of MUs)
        rather than precise locations, so as not to risk losing accurate kill location
        data altogether.  Alternatively, hunters could report precise locations,
      but these data would be released to the public at a lower level of resolution.

Also contained in that report is this paragraph:

Some controversy exists over both the usefulness and availability of
        data concerning the exact locations of grizzly bear kills for assessing
        areas of over-harvest.  The issue has been raised as to whether the MWLAP
        should release this information to persons requesting to evaluate it.  The
        MWLAP has resisted releasing these data on the grounds that this would
        result in hunters and outfitters providing misleading information about
        where kills were made, and would also represent a violation of the implicit
        agreements under which the data were obtained.  The refusal to release
        these data has been portrayed by those requesting them as an effort by
        the MWLAP to obfuscate evidence of overharvests.  We believe it is plausible
        that misrepresentation of kill location data will increase if hunters and
        outfitters know this information will be released, but we have no basis
        for judging the extent of this.  Reliable information on kill locations,
        at least to the level of general geographic region has significant utility
        for managers; however, we believe that data on precise geographic location
        is of little value in indicating over-harvests at the MU or LEH level.  Such
        data are primarily useful to managers for identifying local management
        concerns: for example, in highlighting the need for restricting access
        to areas where bears may be especially vulnerable or identifying shortcomings
      of administrative boundaries.

[20]

The
        information in this report was obviously not available at the time the
        Commissioner conducted his original inquiry.  Counsel for the appellants
        suggested that this additional evidence demonstrated the necessity for
        the appellants to be given a chance to address the s. 18(b) issues in light
        of this up to date material.  The cross-appellants objected to the admission
        of this evidence.  Following the usual practice of the Court, we permitted
        the material to be filed, reserving our decision as to whether it would
        or would not be appropriate to admit this material as fresh evidence
      on appeal.

[21]

The
        appellants submit that the chambers judge erred in her directions insofar
        as those directions impaired the Guide Outfitters' ability to be heard
        on conservation issues.  They submit that, although the chambers judge
        had not specifically found a denial of natural justice, such a finding
        could be clearly inferred from the reasons for judgment and her decision
        to remit the matter back for further consideration by the Commissioner.  The
        appellants submit that the chambers judge erred in directing that the
        Commissioner at this new hearing would not be required to consider additional
        material
        and submissions from the appellants concerning whether disclosure of
        the more detailed information sought by Raincoast and EIA could reasonably
        be expected to result in harm to or interference with the conservation
      of grizzly bears.

[22]

The
        cross-appeals are directed at an issue that could be said to be anterior
        to the matters raised on the appeal.  That is so because, if the submissions
        of Raincoast and the Commissioner (to the effect that the chambers judge
        erred in granting judicial review of Order 01-52) on the cross-appeal should
        be successful, then it would follow that the appeal brought by the appellants
        would become moot.  The respondents seek to have this Court set aside the
        order of Satanove J. granting judicial review.  If they are successful
        in that, then Order 01-52 would be the extant order.  Because of this
        situation, I consider that it is therefore appropriate for the Court
        to first consider
        whether or not it has been demonstrated that the chambers judge erred
        in her order partially allowing the application that had been brought
        by the
      appellants seeking judicial review of Order 01-52.

[23]

As
        I noted above, the learned chambers judge dismissed the application for
        judicial review brought on behalf of the Ministry, but allowed, in part,
        the application for judicial review that had been brought on behalf of
        the appellants.  Although the Ministry filed no appeal from the decision
        of Satanove J., it appeared before us and filed a factum that was limited
        to supporting the position of the appellants on certain administrative
        law issues.  Counsel for the Ministry and Attorney General of British
        Columbia take no position with respect to the issue of whether the process
        before
        the Commissioner was fair; however, they submit, in support of the position
        advanced by the appellants, that no particular deference ought to be
        accorded by a court to the decision of the Commissioner as to what fairness
        required
        concerning who should be entitled to notice and hearing pursuant to s.
        54 of the
Act
.  They submit that this question does not give
        rise to complex or technical issues, or issues to be resolved within a
        specialized context.  They refer to
Baker v. Canada (Minister of
        Citizenship and Immigration)
, [1999] 2 S.C.R. 817, 174 D.L.R. (4th)
        193 [
Baker
];
Aquasource Ltd. v. British Columbia (Information
        and Privacy Commissioner)
(1998), 58 B.C.L.R. (3d) 6, [1999] 6
        W.W.R. 1 (C.A.) [
Aquasource
]; and
College of Physicians
        of B.C. v. British Columbia (Information and Privacy Commissioner)
(2002),
      9 B.C.L.R. (4th) 1, 2002 BCCA 665.

[24]

The
        appellants argued both before the Commissioner when seeking a re-opening
        of the inquiry and before the chambers judge that they ought to have been
        considered to be interested parties having regard to the provisions of
        ss. 19(1) and 21(1) of the
Act
.  These sections are as
      follows:

19
(1) The head of a public body may refuse
        to disclose to an applicant information, including personal information
      about the applicant, if the disclosure could reasonably be expected to

(a)   threaten anyone else's safety or mental or physical health, or

(b)   interfere with public safety.

. . .

21
(1) The head of a public body must refuse
      to disclose to an applicant information

(a)   that would reveal

(i)   trade secrets of a third party, or

(ii)  commercial, financial, labour relations, scientific or technical
      information of or about a third party,

(b)   that is supplied, implicitly or explicitly, in confidence, and

(c)   the disclosure of which could reasonably be expected to

(i)   harm significantly the competitive position or interfere significantly
      with the negotiating position of the third party,

(ii)  result in similar information no longer being supplied to the public
        body when it is in the public interest that similar information continue
      to be supplied,

(iii)result in undue financial loss or gain to any person or organization,
      or

(iv)  reveal information
        supplied to, or the report of, an arbitrator, mediator, labour relations
        officer or other person or body appointed to resolve or inquire into
      a labour relations dispute.

[25]

In
        his response refusing the request of the appellants to reconvene the inquiry,
      the Commissioner observed as follows:

According to the principles
        of administrative law, in the absence of a statutory provision, any interested
        person generally has the right to make representations at a hearing.  The
        Act contains specific statutory provisions for required notice and participatory
        rights in relation to the access request and review and inquiry processes.  Those
        provisions must be construed in a harmonious and meaningful way, including
      when a discretion is conferred, as is the case under s. 54(b).

Many organizations
        and individuals may feel they are affected by disclosure under the Act
        of particular information in the custody or control of a public body.  This
        is the nature of many of the public interests the Act seeks to balance.  To
        a very significant degree, as the Act contemplates, the important role
        and right of assessing and invoking provisions of the Act relating to those
        interests rests with public bodies, not with third parties.  This is consistent
        with traditional government authority over records in its custody or control
        that existed before the relatively recent advent of access to information
        legislation across Canada.  This is also consistent with the exigencies
        of this statutory system.  It simply is not tenable for every person who
        has an interest in the outcome of an access request or an inquiry under
        the Act to have a sufficient interest to attract a right of notice and
        participation.  This reality is reflected in the specific required-notice
      provisions in the Act.

In closing, I consider
        the following passage from the judgment of the majority of the Supreme
        Court of Canada in
T.W.U.
v.
C.R.T.C.
, [1995] 2 S.C.R. 781,
      is instructive in this case:

... it is important
        to note that a finding in the case at hand that the TWU was entitled
      to notice would have grave consequences that could paralyse regulatory
      agencies.  Effectively,
        it would mean that all individuals with contractual relations with a
      regulatee would have to be given notice of regulatory proceedings concerning
      that
        regulatee if such proceedings were likely to effect [
sic
], even
        indirectly, the person in question.  Given the wide scope of many regulatory
        agencies, their decisions are likely to have an indirect effect on a large
        number of individuals in contractual relations with the regulatee.  As
        a result, all such parties would have to be provided with notice of the
        regulatory proceedings.  This is particularly problematic in light of the
        extreme difficulty of ascertaining exactly who these parties are in advance
        of the hearing and the possibility that, in the absence of notice, these
        parties would be able to challenge the legality of the regulatory decision.  This
        could result in an endless series of challenges that would effectively
        paralyse regulatory agencies.  Accordingly, the
audi alteram partem
rule
        should not be interpreted as requiring that notice be provided to parties
      indirectly affected by regulatory proceedings.

[26]

The
        salient issue on the cross-appeals is whether the chambers judge afforded
        the appropriate level of deference to the decision of the Commissioner
        to not give notice or allow the appellants to formally participate in
      the inquiry.  As noted above, the appellants submit that they should have been
        found entitled to such notice and participation because of the degree to
        which their interests could be affected by any decision of the Commissioner.  They
        say that they have economic and safety issues at stake and submit that "harm
        to the grizzlies" causes "harm to the guides (hunters)" because
        the grizzly bear hunt is a significant economic feature of many guide outfitting
        enterprises.  Counsel for the Attorney General submits that, since the
        primary issue before the chambers judge was whether or not the appellants
        were treated fairly from a procedural point of view, this is not a case
        which falls to be decided on the pragmatic and functional approach by
        the Supreme Court of Canada in administrative law cases such as
Dr. Q.
        v. College of Physicians and Surgeons of British Columbia
, [2003]
        1 S.C.R. 226, 2003 SCC 19, but rather falls to be decided on a correctness
        standard:
Baker
,
supra
.  Analogy is made to a situation
        where the Commissioner is engaged in an issue of statutory interpretation
        where no particular deference will usually be appropriate:
Aquasource
,
supra
.  The
        cross-appellants submit that a pragmatic and functional approach is the
        appropriate method a court should adopt when deciding on the appropriate
      scope or standard of review of the decision of the tribunal in this case.

[27]

The
Act
provides
        a fair measure of detail as to who is to be given notice by the public
        body in certain defined circumstances.  Sections 23(1) and (2) of the
Act
provide
        that a party affected by the proposed disclosure of information
must
be
        given notice before information will be disclosed and
may
be given
        notice even if the public body requested does not propose to grant access
      to the information.

[28]

Sections
        23(3), (4), and 24 provide the following quite detailed provisions for
      notice and hearing:

23
(3)The notice must

(a)   state that a request has been made by an applicant for access to
        a record containing information the disclosure of which may affect the
      interests or invade the personal privacy of the third party,

(b)   describe the contents of the record, and

(c)   state that, within 20 days after the notice is given, the third
        party may, in writing, consent to the disclosure or may make written
      representations to the public body explaining why the information should
      not be disclosed.

(4)   When notice
        is given under subsection (1), the head of the public body must also
      give the applicant a notice stating that

(a)   the record requested by the applicant contains information the
        disclosure of which may affect the interests or invade the personal privacy
      of a third party,

(b)   the third party is being given an opportunity to make representations
      concerning disclosure, and

(c)   a decision will be made within 30 days about whether or not to
      give the applicant access to the record.

24
(1)Within 30 days after notice is given under
        section 23 (1) or (2), the head of the public body must decide whether
        or not to give access to the record or to part of the record, but no decision
      may be made before the earlier of

(a)   21 days after the day notice is given, or

(b)   the day a response is received from the third party.

(2)   On reaching
        a decision under subsection (1), the head of the public body must give
      written notice of the decision to

(a)   the applicant, and

(b)   the third party.

(3)   If the head of the public body decides to give access to the record
        or to part of the record, the notice must state that the applicant will
        be given access unless the third party asks for a review under section
        53 or 63 within 20 days after the day notice is given under subsection
      (2).

[29]

By
        contrast, s. 54 of the
Act
, the section under consideration
        here, is framed in much more general terms.  It provides simply that
        the Commissioner, upon receiving a request for review (as occurred here),
        must
        afford notification to the head of the public body concerned and
any
        other person that the Commissioner considers appropriate
.  The emphasized
        category of parties to whom notice is to be given is phrased in such a
        way as to afford a fair measure of discretion to the Commissioner.  The
        Commissioner must engage in a process of consideration and analysis to
        reach an informed decision on such an issue.  The use of the terminology "that
        the Commissioner considers appropriate" is an indication that the
        Commissioner is to exercise his judgment as to who might reasonably be
        thought to be affected by his decision; this of course will inform any
        decision as to those groups or individuals who should receive notice and
        be given formal standing at any inquiry.  This jurisdiction or mandate
        given to the Commissioner by the
Act
is, I should say, quite
        different from the sort of situation found to exist in cases such as
Aquasource
,
        where the Commissioner was engaged in purely an exercise of the interpretation
        of legislative provisions.  The situation in the instant case also differs
        from cases where what I might term a pure issue of notice and hearing arises
        for consideration.  That class of case where such a procedural issue is
        being considered will attract a less deferential standard of review by
        a reviewing court.  While he was in the instant case acting under and
        considering the parameters of the legislation, the Commissioner was not
        so much interpreting
        a legislative provision as deciding who ought to be found to have a sufficient
      interest in the inquiry proceedings to become a participant in the process.

[30]

Although
        the learned chambers judge discussed the proper standard of review concerning
        the decision of the Commissioner when she was assessing the petition
      for judicial review brought on behalf of the Ministry, she did not engage
      in
        any such exercise when discussing the petition for judicial review brought
        on behalf of the appellants.  The argument of the appellants in this Court
        on this issue is that she was not required to undertake such an analysis
        because, if she found error on that part of the Commissioner arising from
        a breach of natural justice, it would then be appropriate for her to order
        a rehearing to remedy the deficiencies.  As I observed above, the issue
        in this case is not just about natural justice but also concerns a process
      of consideration that the Commissioner is mandated to perform under the
Act
.

[31]

It
        appears to me to be doubtful that it could be said here that it has been
        or could be demonstrated by the appellants that any injustice had occurred
        to them by reason of the actions taken by the Commissioner in the conduct
        of the inquiry.  As I recited above, the Commissioner had before him written
        material adduced from Mr. Drown, the general manager of Guide Outfitters.  In
        its written submission to the Commissioner, dated 14 November 2000, the
        Ministry referred,
inter alia
, to the information from Mr. Drown.  The
        affidavit material dated November 2000 from Mr. Drown and Mr. Walker of
        the B.C. Wildlife Federation set out concerns about hunter and guide harassment
        if detailed kill site information were to be released into the public domain.  The
        material that emanated from Mr. Drown that was before the Commissioner
        at the time of the original inquiry also referred to concern about interference
        with hunting and guiding activity if the information being sought by Raincoast
        and EIA were released.  All of this information in my view raised for consideration
        by the Commissioner the economic and safety issues that the appellant now
        says it had no sufficient opportunity to place before him.  At para. 141
        of Order 01-52, the Commissioner specifically refers to information from
        the Walker and Drown affidavits.  It seems to me that the argument that
        the point of view and concerns of the appellants on these issues was not
        placed before and taken account of by the Commissioner at the time of his
        original decision is a proposition difficult to maintain, having regard
        to what in fact occurred over the course of the inquiry.  The chambers
      judge made no detailed reference to these circumstances in her reasons.

[32]

But
        leaving aside this consideration, it seems apparent on the face of the
        reasons of the chambers judge that she did not undertake any particular
        analysis of what standard of review would be appropriate in reviewing the
        determination of the Commissioner that no formal notice to or participation
        by the appellants was required under s. 54 of the
Act
.  His
        decision in that regard was reiterated and expanded upon in the reasons
        he furnished to the appellants declining to re-open the inquiry in May
        2002.  A number of factors fall to be considered in determining what standard
        of review is appropriate.  The case of
Pushpanathan v. Canada (Minster
        of Citizenship and Immigration)
, [1998] 1 S.C.R. 982, 160 D.L.R.
        (4th) 193, is instructive in this regard.  Beginning at para. 29, Bastarache
        J. sets out a number of factors to be considered, namely, the existence
        of a privative clause or a right of appeal, the expertise of the tribunal,
        the purposes of the
Act
, and the nature of the problem.  He
        observed that even in cases involving a question of statutory interpretation,
        a measure of deference may be appropriate where what is being interpreted
      is the tribunal's constituent legislation.

[33]

In
        the instant case there is neither a privative clause nor a right of appeal.  The
        absence of such clauses in itself is not determinative; this is somewhat
        of a neutral factor.  However, the statute is the constituent legislation
        of the tribunal.  This latter circumstance could be said to indicate a
        more deferential standard of review.  The relative expertise of the tribunal
        also falls to be considered.  This area of access to information is a fairly
        specialized area and one with which the Commissioner will, over time, gain
        a familiarity.  He is well situated to appreciate the issues and concerns
        that have arisen and will arise in the operation of the
Act
.  The
        continuing administration of the
Act
will cause the Commissioner
        to be alive to issues such as the parameters of likely concern by those
        who could be potentially affected by decisions relating to the release
        of information under the
Act
.  There is in my respectful
        opinion an obvious factual component to any decision made by the Commission
        under s. 54 concerning notice and participation.  The effective administration
        of the
Act
requires that the Commissioner be afforded a reasonable
        ambit of discretion in deciding who it is
appropriate
to notify
        and to allow to formally participate in any inquiry.  In
Macdonell
        v. Quebec (Commission d'accès à l'information)
, [2002] 3 S.C.R.
        661, 2002 SCC 71 [
Macdonell
], a case where a limited right
        of appeal in the legislation could have been indicative of a less deferential
        standard of review, Gonthier J., speaking for the majority, had this to
      say, at para. 8, regarding the expertise of privacy commissioners:

The Quebec Commission d'accès à l'information has no special interest
        in the decision it must make, and so it is able to play its role independently.  By
        virtue of the fact that it is always interpreting the same Act, and that
        it does so on a regular basis, the Quebec Commissioner develops general
        expertise in the field of access to information.  That general expertise
        on the part of the Commission invites this Court to demonstrate a degree
      of deference.

In
Macdonell
, the court found it appropriate
      to apply a standard of reasonableness to the decision of the Commissioner.

[34]

In
        the recent case of
Deloitte & Touche LLP v. Ontario Securities
        Commission
, [2003] 2 S.C.R. 713, 2003 SCC 61, the Supreme Court
        of Canada found appropriate the application of a reasonableness standard
        in reviewing a decision made concerning disclosure of information in the
        public interest under the provisions of the
Securities Act
,
        R.S.O. 1990, c. S.5.  Although a decision made by a tribunal on what
        is in the public interest could arguably attract a greater ambit of deference
        than, as here, a decision as to who should be
appropriately
notified
        of a hearing, both decisions clearly involve the consideration of case
        specific factual matters as well as the exercise of a discretion.  I
        am inclined to the view that in assessing any decision of the Commissioner
        under s. 54(b) of the
Act
, a standard of reasonableness
        is the appropriate standard of review to be employed by a reviewing court.  There
        is, as I noted, a considerable factual element in any such decision and,
        because this question also engages in a general way the
audi alteram
        partem
rule, there is as well a legal aspect to the issue.  Because
        of these mixed elements, factual and legal, the intermediate standard
        of reasonableness appears to me to be the appropriate standard of review
        to
      be adopted by a court on judicial review of such a decision.

[35]

Having
        regard to the broad overlap between the position of the Ministry and
      the position of the appellants (as set forth in material placed before
      the
        Commissioner at the inquiry) I do not consider that he was required to
        do more than he did concerning these appellants.  The appellants were made
        aware of the proceedings, and affidavit material setting forth their views
        and interests was received as detailed above.  The Commissioner received
        material not only from the appellants but also material from those with
        an interest similar to them, including the Wildlife Federation.  This helped
        to ensure that all relevant points of view were placed before him for consideration.  In
        the vernacular, the appellants were not "left out of the loop".  The
        chambers judge, in my respectful opinion, erred in failing to more fully
        articulate and consider the proper standard of review to be applied to
        the decision of the Commissioner under s. 54(b) concerning notice to and
        participation by the appellants.  If she had undertaken this exercise I
        consider it likely that she would have reached the conclusion that any
        deficiencies suggested to exist by the appellants were more apparent than
        real.  I consider the decision of the Commissioner under attack was a reasonable
        one and not at all unfair to the appellants.  The Commissioner was not
      required to do more that he did concerning these appellants.

[36]

In
        my opinion the cross-appeals brought by the Commissioner and Raincoast
        ought to be allowed.  That conclusion makes it unnecessary to consider
        the issue of the admission of the fresh evidence tendered in these proceedings
        on behalf of the appellants.  It also follows from that conclusion that
        the appeal of the appellants to this Court ought to stand dismissed and
      I would so order.

The Honourable
Mr. Justice Hall

I Agree:

The Honourable
Mr. Justice Low

I Agree:

The Honourable
Mr. Justice Lowry


