BC Privacy Commissioner restricts access requests in Summerland, BC

The Petitioner, a resident of the District of Summerland (the “District”) was partially successful in applying for judicial review of a decision made by the Office of the Information and Privacy Commissioner of BC (“OIPC”). The OIPC had granted an order permitting the District to disregard access requests from the Petitioner.

Administrative law – Decisions reviewed – Privacy commissioner – Freedom of information and protection of privacy – Disclosure of records – Judicial review – Procedural requirements and fairness – Notice – Bias – Standard of review – Reasonableness – Correctness

Besler v. British Columbia (Information and Privacy Commissioner), [2025] B.C.J. No. 645, British Columbia Supreme Court, April 9, 2025, B. Hardwick J.

The Petitioner, Mr. Bradley Besler, is a resident of the Respondent, District of Summerland (the “District”).  The petition relates to a decision of the Respondent, Office of the Information and Privacy Commissioner of British Columbia (the “OIPC”). 

The Petitioner is involved in active litigation with the District and other parties. The Petitioner submitted 58 requests for records to the District pursuant to the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 [“FIPPA“] to the District between 2019 and 2023. The Petitioner’s family also submitted 18 access requests between 2019 and 2022.

The District applied, pursuant to section 43 of FIPPA, to disregard 10 of the Petitioner’s requests. The relief sought included a term that, for three years, the District could disregard applications made by the Petitioner and by family members on his behalf.

The OIPC agreed to consider the application and sent a notice to the District and the Petitioner. The OIPC and the District did not provide notice to any of the Petitioner’s family members. The OIPC and the District knew the identity and contact information of the individuals who submitted the requests that were included in the District’s application.

The OIPC adjudicator (the “Adjudicator”) found the access requests were “systemic” and “excessively broad” pursuant to s. 43 of FIPPA and that fulfilling those access requests would unreasonably interfere with the District’s operations (the “Order”). The Order included the relief that the District could disregard applications made by the Petitioner’s family on his behalf.

The Petitioner applied for judicial review of the Order.

The applicable standard of review was correctness relating to the procedural fairness argument, and reasonableness for the substantive challenge to the Order.

The court held that the rights, privileges, or interests of the Petitioner’s family members were affected by the order sought by the District and they were entitled to procedural fairness. The court next considered the content of the duty of procedural fairness to the Petitioner’s family members and whether they were entitled to notice. The court held they were entitled to notice.

In the alternative, the court considered the substantive reasonableness of the Order. The court only considered reasonableness with respect to the issue of remedy.  The court held it was unreasonable that the Order did not define the term, “family”. The court also held it was unreasonable that the Order did not delineate between the family members making an application for themselves and making one on behalf of the Petitioner. The court held that these conclusions would not require the entire matter to be remitted to the OIPC.

The court considered and rejected the Petitioner’s argument that the Adjudicator was biased.

The Order was quashed and the matter was remitted back to the OIPC for reconsideration based on the reasons and after notice was given to the Petitioner’s family members. In the alternative, the Order was quashed in part and the issue of remedy was remitted to the OIPC for reconsideration based on these reasons. The parties were ordered to bear their own costs for the petition.

This case was digested by Scott J. Marcinkow of Harper Grey LLP and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please feel free to contact him directly at [email protected].