Saskatchewan – arbitral board created by statute subject to access to information legislation procedures – #250

In 605499 Saskatchewan Ltd. v. Rifle Shot Oil Corp., 2019 SKCA 133, the Saskatchewan Court of Appeal held that an arbitration board, created by legislation, qualified as a government institution under Saskatchewan regulation and was subject to access to information rules and procedure.  The decision reminds parties that the documents they file during their dispute resolution process may be subject to additional legislation preventing or facilitating their disclosure. The Court provided an express caution, indicating that it did not endorse the arbitration board’s conclusion that documents filed with the arbitration board were, as a category, always exempt from production. 

The dispute involved a challenge to a decision by the Surface Rights Arbitration Board (“Board”) created by Saskatchewan’s The Surface Rights Acquisition and Compensation Act, RSS 1978, c S-65 (“SRACA”).  The SRACA addresses issues stemming from operators who extract oil and minerals from land and the owners and occupiers of that land on which the operators undertake their extraction activities.  Among other issues, operators who hold right of entry orders (“ROEs”) are required to pay compensation to owners and occupants of land in exchange for surface rights.

Appellants own farmland in Saskatchewan and Respondent operator holds ROEs for certain parcels of land owned by Appellants.  Unable to agree on compensation owing for surface rights, the parties undertook arbitration before the Board and a hearing was held January 30, 2018 to determine compensation.

At the start of the hearing, Appellants made a verbal request for access to records held by the Board, characterizing the invoking section 30 of the SRACA.  Those records would include lease agreements filed by others which Appellants asserted would be relevant to establishing “a pattern of dealing” and thereby assist the Board in determining an appropriate compensation. Appellants filed no written application, did not specify the records sought and sought no adjournment to obtain them.

The Board issued a March 7, 2018 ruling (“Hearing Decision”) in which it determined the compensation payable by Respondent to Appellants under the ROEs and denied Appellants’ request for access to agreements filed with the Board under section 30 of the SRACA.  The Board held that (i) the Board was prescribed as a government institution under Saskatchewan’s The Freedom of Information and Protection of Privacy Act, SS 1990-91, c F-22.01 (“FOIPPA”) regulations, (ii) such access was governed by the FOIPPA and (iii) section 19 required the Board to refuse access to records which contain financial, commercial or technical information supplied in confidence, implicitly or explicitly, by third parties.

Appellants applied to the Saskatchewan Court of Appeal for leave to appeal the Hearing Decision, alleging the Board erred in law by rejecting its application for access to the records. Section 71 of the SRACA authorizes appeals directly to the Saskatchewan Court of Appeal but only on leave and limited to either a question of law or a question concerning the jurisdiction of the Board.  For a recent application, see Neufeld v. Rifle Shot Oil Corp., 2018 SKCA 58

Relying on Fletcher Challenge Energy Canada Inc. v. Sulz, 2001 SKCA 11, the Court held that the standard of review is correctness.  That case explored whether a different standard applied when the Board stated a case to the Court. Though Fletcher Challenge Energy Canada v. Sulz predated the administrative law analytical approach set out in Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), [2008] 1 SCR 190, the Court in Gary L. Redhead Holdings Ltd. v. Swift Current (Rural Municipality), 2017 SKCA 47 paras 66 and 71-72 continued to follow the standard set by Fletcher Challenge Energy Canada v. Sulz.

At paras 29 and 36 the Court expressly stated that it did not endorse the Board’s conclusion that section 30 agreements “necessarily” were “as a category, always exempt from production” but, on the facts of the case before it, accepted that the Board was correct to reject Appellants’ application because they “did not follow the procedures set out in FOIPPA for seeking access”.

The Court acknowledged that the FOIPPA was not the only way to access records held by a prescribed government institution even if those records were held by an institution to which the FOIPPA applied.

[32] To be clear, the mere fact that a record is held by a prescribed government institution does not mean that FOIPPA is the only way access can be pursued. However, where FOIPPA applies to both the government institution and the record or information in question, the government institution is entitled to refuse access if the request is not made in accordance with FOIPPA.

Once the FOIPPA applied, the Court held that the detailed procedure in the FOIPPA must be followed in order to seek access.  “Where FOIPPA applies, there is a detailed procedure that applicants must follow in order to seek access and, if that procedure for requesting access is not followed, the government institution in possession of the records commits no error by refusing access.

The Court considered the application of sections 3(1)b and 4 of the FOIPPA which exempted some records from the application of the FOIPPA.  Based on is reading of those sections, the Court identified four (4) implicit exemptions from the FOIPPA and considered the records sought by Appellants in light of those exemptions:

(i) records for which there is an “existing procedure” for access, so as to engage s. 4(a) of FOIPPA – paras 43-60;

(ii) records that fall within the “matter of public record” exception in s. 3(1)(b) – paras 63-69;

(iii) records “normally available to the public” as contemplated by s. 4(b) – paras 70-72; or,

(iv) records kept in a registry to which public access is normally allowed, as contemplated by s. 4(f) – paras 73-16.

urbitral note – The case demonstrates that certain arbitral bodies, created by legislation, are deemed by regulation to be government institutions and are therefore subject to other legislation, such as access to information procedures.  When resolving disputes before such arbitral bodies, parties must anticipate whether documents they file, willingly or not, with such arbitral bodies, may eventually be subject to a process independent of the dispute resolution process in which they engaged.  The Court of Appeal provided an express caution, indicating that it did not endorse the Board’s conclusion that agreements were as a category, always exempt from production.  This caution alerts dispute resolution practitioners that, in some cases, the FOIPPA would not exempt documents filed with the Board from production.

The decision provides a roadmap for others considering whether and when documents subsequently held by an arbitral body, created by legislation, can be obtained either by applicable access to information legislation and independent of the arbitral body’s own procedural rules.  Such access to information legislation may either limit or facilitate access to the documents, depending of the result of any analysis similar to that conducted in the present case.

Despite its assigned name comprising the term “arbitration”, the Board issuing the decision was subject to administrative law rules for judicial review of administrative decisions.  The reference to the analytical approach set out in Dunsmuir v. New Brunswick ought to be read against the clarifications, issued three (3) days after the Saskatchewan Court of Appeal decision, by the Supreme Court of Canada in reasons articulated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 and application illustrated in Bell Canada v. Canada (Attorney General), 2019 SCC 66.