Court of Appeal

                                NOVA SCOTIA COURT OF APPEAL

Citation: Unama’ki Board of Police Commissioners v. Canadian Broadcasting Corporation , 2003 NSCA 124

                                                                                                     Date: 20031120

                                                                                               Docket: CA 195728

                                                                                                   Registry:  Halifax

Between:

                     Unama’ki Board of Police Commissioners, Chapel Island

                     Band Council, Eskasoni Band Council, Membertou Band

                                   Council and Waycobah Band Council

                                                                                                              Appellants

                                                             v.

              John Chesal, of the Canadian Broadcasting Corporation CBC Radio

                                 and the Attorney General of Nova Scotia

                                                                                                          Respondents

JUDGE:                         BATEMAN, J.A.

APPEAL HEARD:         October 7, 2003

JUDGMENT DELIVERED:          November 19, 2003

          SUBJECT:            Freedom of Information and Protection of Privacy Act, S.N.S. 1993, C. 5

SUMMARY:    CBC reporter Chesal applied to the Nova Scotia government under the Freedom of Information and Protection of Privacy Act (the “FOIPOP Act”)  for release of a 1999 audit of the Unama’ki Tribal Police Force (the “UTP”) which police force was funded by the federal and provincial governments and responsible for providing police services to certain reserve lands.  The Chief of the Membertou Band objected to the release of the report.  The FOIPOP  Coordinator refused its release.  The matter was ultimately before the Supreme Court where the judge ordered that the report be released.  The Bands involved in the UTP appealed, objecting to the disclosure of the Audit report.

ISSUES:           1.            Did the Chambers judge apply the wrong test in determining whether there was a reasonable expectation of harm arising from release of the information contained in the Audit Report (s. 12(1)(a)(iii) of the Act)? 

2.            Did the Chambers judge err in concluding that the Audit Report was not information received in confidence (s. 12(1)(b) of the Act)?

3. Did the Chambers judge err in concluding that the personal information contained in the Audit Report fell within s. 20(4)(e) of the Act?

RESULT:         While the test stated by the Chambers judge as applicable under s. 12(1)(a)(iii) was in error, he did not err in the result.  A reasonable expectation of harm requires more than a mere possibility of harm.  The evidence here fell short of meeting the statutory standard.  The Chambers judge did not err in concluding that the information contained in the report was not received in confidence within the meaning of s. 12(1)(b) which requires an expectation of confidence on the part of both the recipient and the supplier of the information.   Nor was he wrong in holding that the personal information contained in the Audit Report fell within s. 20(4)(e).