[1] THE COURT: This matter came before me by way of petition for judicial review. The petition is that of Mr. Stanley Tromp, at all times material, a reporter with The Ubyssey, a student newspaper published on the campus of the respondent, University of British Columbia.

[2] Mr. Tromp sought orders from The Information and Privacy Commissioner of the province, who I will refer to throughout as "the commissioner", revealing the details and financial arrangements made between the University of British Columbia ("UBC") and Coca-Cola Bottling Ltd., which was granted an exclusive distributorship of their products on the campus of UBC, in what is called on the record, "The Cold Beverage Agreement". The commissioner's decision upheld the university's decision to withhold the records, save for the signatories to the agreement. His decision was made primarily under ss. 14 and 21 of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, which I will refer to throughout as "the Act".

[3] UBC's decision to withhold is contained in a letter dated February 5^th, 1996, found at tab 7 of the chambers record. In that letter to Mr. Tromp, Libby Nason, the Vice Provost of the university, outlines that certain documents or pages were completely severed under s. 14 (solicitor client privilege). There is really no argument about that being an appropriate withholding. Then she went on to say, "The following pages have been severed completely under s. 17," and a great variety of numbers follow and then, "the following pages have been severed completely under s. 21." Now, that decision of UBC given to Mr. Tromp points out as follows:

And the address is given. Indeed, that is exactly what Mr. Tromp did.

[4] Now, the Commissioner's decision upholding UBC's refusal came before me and the petitioner's submissions are contained in his brief and in the introduction, under "3", it says this:

Then the brief goes on to outline the facts and it perhaps is useful for the record to use those facts, which are not much in dispute. The brief says:

By letter dated December 7^th, 1995, Tromp requested that the University of British Columbia (UBC) provide him with copies of all records concerning or related to the exclusive sponsorship agreement entered into between UBC and Coca-Cola Bottling Ltd., dated August 1^st, 1995, the Cold Beverage Agreement.

At the time of the request, Tromp was a UBC student and also a reporter with the student newspaper, The Ubyssey. UBC responded by claiming that 179 of the 209 pages of the Cold Beverage Agreement were subject to severance and excepted from disclosure under ss. 14, 17 and 21 of the Act.

[5] On February 10^th, the petitioner wrote to the office of the commissioner requesting an inquiry under the Act into UBC's decision to not disclose portions of the Cold Beverage Agreement and thereafter, on the 19^th of June, 1996, the commissioner conducted a written inquiry.

[6] On September 17^th, 1997, the Commissioner released order No. 126 (1996) entitled "Inquiry Re: A Media Request for Access to All Records Concerning an Agreement Between The University of British Columbia, Coca-Cola Bottling Ltd. and Other Third Parties", in which he confirmed the decision of UBC not to release the records sought, with the exception of that portion of the contract containing the signatories to the contract which he required UBC to produce.

[7] I think that is a fair summary of the facts as they came before me and I think the issues are fairly stated in the brief as follows:

And those are the issues which I have heard submissions on over the past two days.

[8] Now, in the petitioner's February 10^th, 1996 letter to the commissioner headed "Appeal", which is tab C of the affidavit of Helga Driedger, the following comments appear:

Then there is some campaign talk but the final paragraph is as follows:

[9] Now, that seems to me to be the purview of the decision that has to be reviewed and I turn then to the commissioner's decision. Without going into great length, I point out that the commissioner did not in any sense that I can find deal with s. 25. He said, at page 4, under "8", "Discussion: Late Submissions by the Applicant":

[10] Now, that would have been a place to indicate that he had thought about s. 25, but he did not and then he goes on to deal with s. 14 and then he deals at length with s. 17 culminating in this decision:

Then he deals with s. 21 and concludes:

And then he makes the following order:

[11] Now, that is the decision under review. As can be seen, the commissioner did not deal with Mr. McConchie's reply to Mr. Tromp's original submission on s. 25, and to be fair to the commissioner, neither did Mr. Tromp follow up on his original submission under s. 25. One, however, must keep in mind that Mr. Tromp was a lay litigant dealing with an expert in the field. I only allude to tab 5K in the brief to point out that there were submissions made about Mr. McConchie's expertise and having written on the subject matter to The Vancouver Sun and then the brief, at paragraph 6.10, says:

In paragraph 6.11:

Now, that is, I think, a little bit of self-aggrandizement in the brief about Mr. McConchie and Ladner Downs, fair enough, but I also point out that Mr. Tromp cannot be expected to be as sophisticated in his submissions as was Mr. McConchie.

[12] Now, I think I should at this point turn to the Act itself to illustrate and let counsel better understand my concerns. The Act is relatively new, although it looks to be a 1996 Act, but it takes some time for statutes of this size and dimension to become commonplace although there has been some obvious litigation about it. The Act itself identifies its purpose in s. 2, which states, in part:

[13] Now, there are a number of sections relevant to the case at bar, but, as I say, I confirm the commissioner's decision under s. 14 which simply reads:

Now, "public body". It took me some time to determine what a public body is, but it is defined in Schedule 1 of the Act which says:

And "local public body" means:

And then "educational body" is defined under (a) to mean:

That brings me to conclude UBC is a public body.

[14] Now, going on to the exceptions to be found, they are contained all in Part 2, Division 2. But s. 25 in Division 4 has this to say and, I think it is of significance: "Division 4, public interest paramount," and the heading, "Information must be disclosed if in the public interest." Section 25(1) reads:

[15] Now, that was the section which Mr. Tromp put in his notice of appeal in the way that I have indicated. The section has not, to my knowledge, been construed judicially although my brother Melvin J. had an interesting issue before him in the case of Clubb v. Saanich (District) (1996), 35 Admin.L.R. (2d) 309 (B.C.S.C.). There Mr. Clubb was found in suspicious circumstances in Beaver Lake Park, frequented by children. He was a paroled pedophile and the police chief decided that he should issue a warning to the public pursuant to s. 25, and relied on s. 25. Thereupon, Mr. Clubb, through his lawyer, challenged the section under the Canadian Charter of Rights and Freedoms. It was found to muster under the Charter but the police chief was admonished for failing to observe the notice provisions of s. 25, which is 25(3). In his rambling on s. 25, Justice Melvin said the following, at paragraphs 33 and 34:

Now, there is no help to me as to what s. 25(1)(b) means, except Mr. Justice Melvin's view of its apparent vagueness.

[16] Well, I am not much help to the commissioner either, as it is not for me to say what s. 25(1)(b) means. I think, however, that by the scheme of the Act, when an applicant asks that it be considered, it has to be considered before one can look to the exceptions under ss. 17 and 21. And after reading the commissioner's decision, I conclude that he may or may not have known about the public interest override section. He said nothing, however, that could be construed as a conclusion that none of the material could come within s. 25(1)(b). Since he does not say so, I am at a difficulty to determine that he addressed the point.

[17] I am aware that as R. v. Burns, [1995] 1 S.C.R. 656, and other such cases make clear that while reasons are desirable, in the absence of a statutory or common law ruling, they are not required and their absence does not raise a question of law. An appellate court or a review court, in my case, may review the whole record to determine whether the trial judge or, in this case, the adjudicator erred in a matter that could reasonably have affected his decision. In the case at bar, a fair reading of the record and his reasons leaves me to conclude that he failed to approach s. 25 first before turning his mind to ss. 17 and 21.

[18] Now, it is not for the court, in my view, to go on and make a decision on the record as to whether it thinks the facts here dictate that the information or any part of it are, "clearly in the public interest"; that is for the commissioner. I point out, however, parenthetically, that there could be financial information, the release of which could be clearly in the public interest. One could ask, for example, as counsel alluded to, at what point in a public enterprise are taxpayers entitled to be told, clearly in the public interest, that a $100,000,000 plus budget has skyrocketed to over half a billion dollars. That is a question the head of the B.C. Ferries was perhaps compelled recently to ask himself or herself under s. 25.

[19] Now, at what point in time can, for example, the faculty and student body be entitled to know the amount of revenue from a particular enterprise, say a patent agreement regarding an esoteric technological development that the university is involved with under its research and development arm? Obviously, it seems to me that on occasion financial information may be clearly in the public interest when it relates to a publicly funded institution that is clearly a public body within the meaning of the Freedom of Information and Protection of Privacy Act. Obviously, unless the question is put to the commissioner, as it was in the case at bar, he need not state in every adjudication that he has considered whether any of the requested records could be said to fall under the s. 25 exception. However, ss. 25(1)(a) and 25(1)(b) may require release of some or part of the requested information before turning to the exceptions permitted in ss. 12 through 22 in Division 2 of the Act. Obviously, the Act favours public disclosure over secrecy.

[20] Now, regarding the petitioner's argument over procedural fairness and looking at documents in-camera, I do no more than point to Madam Justice Lynn Smith's judgment, found in tab 13 of the commissioner's authorities, Greater Vancouver Mental Health Society v. British Columbia (Information and Privacy Commissioner) (3 February 1999) Vancouver Registry No. A970437, A970483, A970484 (B.C.S.C.). I do not find that the petitioner, Tromp, was deprived of natural justice or procedural fairness. And while, as I observed in argument, there was evidence upon which he could find as he did under ss. 17 and 21, I quash his order because of my finding on the issue stated in his brief under "C", namely, the commissioner erred in law or exceeded his jurisdiction in failing to consider and apply s. 25 of the Act to the information before him.

[21] I sever his decision under s. 14 as authorized in law by the cases, in particular, that cited by counsel for the commissioner, Hobby Ranches Ltd. v. The Queen, which is a decision of Mr. Justice Hutcheon reported at (1978), 8 B.C.L.R. 247 (S.C.), and, I might say, followed on that issue under the Judicial Review Procedure Act by Callaghan J. in Re MacKenzie v. MacArthur (1980), 57 C.C.C. (2d) 130 at 139-140 (B.C.S.C.). Thus, the solicitor client privilege asserted by UBC is upheld. The decision under ss. 17 and 21 is quashed and the issue of "clearly in the public interest" is remitted back to the commissioner with whatever help, and I acknowledge very little, that these reasons may bring. The petitioner is entitled to his costs under Scale 3. That is all I have to say.

"R.B.McD. Hutchison"
The Honourable Mr. Justice R.B.McD. Hutchison