Territorial acknowledgements have become a thing. The City of Vancouver’s website has the following statement at the foot of every page:

The City of Vancouver acknowledges that it is situated on the unceded traditional territories of the xʷməθkʷəy̓əm (Musqueam Indian Band), Sḵwx̱wú7mesh (Squamish Nation), and səlilwətaɬ (Tsleil-Waututh Nation)

The Author, being a scholar interested in the law, made a Freedom of Information request to the City of Vancouver concerning the statement, viz.

All records within the Legal Services department underpinning the claim that the area described in section 6 of Vancouver Charter sits on unceded territory of the “xwməθkwəy̓əm(Musqueam), Sḵwx̱wú7mesh (Squamish), and Selí̓lw̓itulh (Tsleil-Waututh) Nations. Date range: January 1, 2011 to December 31, 2015.

The City has requested a fee for the records, a fee that the author cannot pay. Part of the test for a fee waiver is if the applicant has the means to disseminate the information to the public. This test, which is not contained in the legislation, has a very interesting history, and apparently dates from the 1990s, originating in Ontario. The History is summarized here:

In Order No. 155-1997, my predecessor articulated a two-step process to be followed by the head of a public body in deciding whether to grant a fee waiver. As was acknowledged in Order No. 155-1997, that approach was, to some extent, borrowed from the analysis Order No. 332-1999, developed in Ontario Order P-474. That approach was further developed by the previous commissioner in Order No. 293-1999 and Order No. 298-1999. (Order No. 332-1999, OIPCBC, pp. 4-5)

1997 was the era of photocopiers: while it was possible for an individual to set up a website (and I had one at the time, thankfully long forgotten!) it was a different ballgame. Also, even finding these decisions at that time would have been far more difficult. Today, we can easily look them up. Let’s go back to 1997:

The factors described above are not intended to be exhaustive. I have relied to some extent on established criteria in Ontario, as set forth in the leading Ontario case on fee waivers: Information and Privacy Commissioner/Ontario, Order P-474, Ontario Hydro (Irwin Glasberg, Assistant Commissioner, June 10, 1993, pp. 1-3), taking into account the differences in the Ontario legislation. I understand that B.C. Information Management Services has been developing criteria for waiving fees in the public interest. I encourage it to continue this process. (Order No. 155-1997, OIPCBC, pp. 6-7)

With one quick stop at CanLII, we can go to the Ontario Order, and it is a question why BC used the Ontario framework, unless BC’s statute has changed substantially since 1997. The Ontario order says this:

In order to address this issue, it will be necessary to review the fee waiver provisions of the statute which are contained in section 57(4)(c) of the Act and the factual context in which the appeal arose. Section 57(4)(c) states, in part:

A head shall waive the payment of all or any part of an amount required to be paid under this Act where, in the head’s opinion, it is fair and equitable to do so after considering, whether dissemination of the record will benefit public health or safety; (Order P-474, ON IPC)

This, of course, refers to the Ontario act, which is different from the British Columbia act:

75 (5) If the head of a public body receives an applicant’s written request to excuse payment of all or part of the fees required under subsection (1) (b), the head of the public body may excuse payment, if, in the head of the public body’s opinion,

(a)the applicant cannot afford the payment or for any other reason it is fair to excuse payment, or

(b)the record relates to a matter of public interest, including the environment or public health or safety.” (FREEDOM OF INFORMATION ANDPROTECTION OF PRIVACY ACT [RSBC 1996] CHAPTER 165 ss. 75(5))

The Ontario act requires the head of a public body to consider “whether dissemination of the record will benefit public health or safety.” This justifies a somewhat tenuous inference that the applicant must be able to disseminate the record, but one could also read it to be a test as to whether, if the record were disseminated (regardless of the applicant’s ability), it would benefit public health or safety. I suppose one could say that “will” contemplates the future dissemination of the record, where “would,” if it had been used, could make the test more virtual, but this seems like a nice quibble. If, for example, someone were on their death-bed and made a request, could the head of a public body say “sorry, you are too sick, so you could never disseminate the record, so I will not waive the fee”? I also note that 75(5)(b) is not an exhaustive list, where the Ontario act appears to require the dissemination (actual or potential) to “benefit public health or safety.”

The British Columbia act does not impose this sort of test: the word “disseminate” does not appear in the enactment, where it does in the Ontario act. Therefore, it could be that this test, developed in 1997 by reference to a 1993 case in Ontario, could have been the wrong test. It should be noted that the Ontario order is not binding, and, as it begins with a specific reference to verbiage that is simply not contained in the British Columbia act, it is questionable how persuasive the Ontario order is.

The British Columbia test, construed narrowly in its literal and grammatical sense, is whether or not the record “relates to a matter of public interest.” That is the test, so I would suggest that using a test based on an interpretation of a different Ontario statute, which may itself be a bad interpretation, is an error. Where in the Ontario order, there is a requirement for a “benefit,” the British Columbia statute contains a lower bar: the records must “relate” to a matter of public interest. To impose a “benefit” test goes beyond the text of the British Columbia act, which only requires that the record “relate” to a matter of public interest.

The British Columbia Interpretation Act provides that “8 Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” The object of section 75(5) is to provide two cases where fees may be waived. 75(5)(b) should be construed liberally, not restrictively and especially not restrictively on the basis of an Order from Ontario interpreting a statute that has different wording than the British Columbia Statute.

More to come…