Underlying all privacy legislation is a conflict between the obligation to protect privacy and the obligation to disclose documents. This conflict is highlighted by a recent ruling of the Alberta Court of Queen’s Bench. In University of Alberta v. Pylypiuk, a professor sought all information in the University of Alberta’s files pertaining to a decision by the Department of Modern Languages and Cultural Studies removing her from a supervisory committee for graduate studies. Among the documents were letters containing information about the professor, sent by three former graduate students. The University disclosed some of the information in the file but refused access to the letters and certain other documents. The University was concerned that allowing access to the records would constitute an unreasonable invasion of the students’ privacy, despite the professor’s interest in having the records disclosed.

The Alberta Freedom of Information and Protection of Privacy Act is similar in many respects to the British Columbia Act. The Alberta statute permits a public body to refuse disclosure if it would be "an unreasonable invasion of a third party’s personal privacy". Information regarding a third party’s "educational history" is presumed to be an unreasonable invasion. However, the Act also stipulates that in determining whether disclosure constitutes an unreasonable invasion, the public body must weigh factors such as whether the personal information has been supplied in confidence and whether the information is relevant to a fair determination of an applicant’s rights.

In seeking disclosure, the professor argued that the records, including the letters, contained personal information relevant to a fair determination of her rights. The University argued that the records, particularly the letters, constituted personal information that was part of the educational history of the students, that the students’ names appeared with other personal information of the students and that the information was given by the students in confidence. The Alberta Commissioner allowed the letters to be disclosed except for certain portions containing personal information about the students and portions where personal information regarding the professor was intertwined with personal information regarding the students.

The Court disagreed and ordered the Commissioner to reconsider which portions of the records were to be disclosed. The Court concluded that the Commissioner placed undue emphasis on the effect the records could have on the professor’s reputation and employment, although it was clear the professor’s legal rights could not be affected, particularly when the records were only in the students’ files and not in the professor’s file. The Court looked specifically at the "power imbalance" that existed as between the professor and the students and concluded that this was a relevant circumstance to be considered. Clearly a professor could control class results, grades and scholarship recommendations. There was also evidence that the power imbalance could extend beyond graduation, particularly with graduate students. The professor had not presented any evidence to counter these assertions. Thus, the students’ right not to have information in the letters disclosed outweighed the professor’s right to disclosure and any need for public scrutiny of the University as a public body.

A decision of the British Columbia Information and Privacy Commissioner rendered in July 2001 provides an interesting contrast to the Alberta decision. In Order 01-30, the student applicant was the subject of a letter written to UBC by another student and sought to have the letter disclosed. The Commissioner concluded that information in the letter regarding the author, as well as information regarding two other students and an instructor, should not be disclosed, the letter having been provided in confidence. UBC could not deny the applicant access to any personal information in the letter regarding her, even if that information was intertwined with information regarding other third parties or the author of the letter. The latter information consisted of the author’s opinions about the applicant, including the applicant’s behaviour in the academic setting. Thus, the British Columbia Privacy Commissioner permitted greater disclosure than that allowed by the Alberta Court. However, there was no perceived "power imbalance" at issue in the British Columbia decision, since both the applicant and the author of the letter were students.

It is a difficult task for any public body when a person seeks access to personal information that is contained in letters or other documents provided to the public body in confidence by another person. The Alberta and the British Columbia decisions illustrate the need to balance all the factors.

Clark Wilson LLP is pleased to announce that Helen Lee has joined the firm as a member of the Higher Learning Practice Group, as well as the Technology & Intellectual Property and Biotechnology Practice Groups.

Prior to joining Clark Wilson LLP, Helen was employed in the technology transfer offices of Acadia University and the University of British Columbia, and also served as the Director of the Office of Technology Development at the University of Louisville. In these roles she developed extensive experience in the commercialisation of intellectual property created at universities. Helen has worked closely with both university and corporate researchers to evaluate new inventions and to develop intellectual property strategies for these inventions. She has been involved in the licensing of university inventions to both established and spin-off corporations.

Her experience also includes drafting and negotiating a variety of agreements with life science companies including biomaterial transfer agreements, confidentiality agreements, sponsored research agreements and option agreements. She has also reviewed and negotiated clinical trial agreements with biotechnology companies, pharmaceutical corporations and contract research organizations. She has completed an assortment of inter-institutional agreements including representing a university in multi-party negotiations leading to the formation of several new federal Networks of Centres of Excellence. Her work with universities has led to an intimate familiarity with university/corporate relationships.

Helen has an honours Bachelor of Science degree from McMaster University, with an emphasis on Molecular Biology and is a Registered Laboratory Technologist graduating from the Toronto Institute of Medical Technology. She holds a Bachelor of Laws degree from Osgoode Hall Law School, York University.

Helen can be reached at 604-891-7747 or by email at hml@cwilson.com.

Ardeshir can be reached at 604-891-7719 or by e-mail at azd@cwilson.com.
 
 

A private, non-profit, secular university located in Squamish has long been the dream of a dedicated group of individuals. The campus must still be built and faculty, staff and students, recruited, but with the passage of the Sea to Sky University Act this spring, the University became a legal reality. Clark Wilson LLP was pleased to assist the Sea to Sky team with the drafting of the Private Bill and with the legislative process leading to the passage of the Bill.

As a legal entity, Sea to Sky University is established as a corporation with all the powers of a natural person of full capacity. These powers, the same as are granted to incorporated businesses, ensure that the University can contract, enter into partnerships and carry out all relevant functions. The powers are vested in a board, which must in turn appoint a president. The president's power's are specifically enumerated in the legislation. Provision is also made for establishment of an academic council to oversee academic standards, and advisory committees to provide advice on specific matters.

The University also has the power to grant degrees in its own name and to award certificates and diplomas. The first 400 students are anticipated in the fall of 2004. That number will gradually increase to 1,200.

In connection with the new Capital Asset Management Framework announced in May, 2002, Treasury Board Directive 1/03 dated June 26, 2002 repealed Section 1.6 of the Province of B.C. General Management Policy Summary which previously prescribed that the Province of B.C. Stipulated Price Construction Contract and Guidelines be used for health, education, advanced education and BCBC construction contracts where the Province’s estimated contribution was $250,000 or more. Although Section 1.6 was repealed, Treasury Board advises that individual ministries might of their own accord still require that the B.C. Stipulated Price Construction Contract and Guidelines be followed. Upon contacting the Ministry of Advanced Education, Ministry of Education, and Ministry of Health, Capital Services, we were advised that that new forms will be used or developed. My expectation is that CCDC2, with customised supplementary conditions will be used (which is consistent with 8.5.3.1.3 of the Capital Asset Management Framework announced in May, 2002). Call Roy Nieuwenburg at 604 643-3112 if you have any questions.