In an earlier post, we referenced a 2015 Office of the Information and Privacy Commissioner (OIPC) order for UBC to disclose documents, specifically scoring rubrics used to assess the personal profiles of applicants to UBC faculties through its broad-based admissions process. The scoring rubrics were originally requested by a journalist at a UBC student newspaper. When UBC declined to provide the scoring rubrics, the journalist applied to the OIPC to review UBC’s decision. You can read more about this in our previous entry here. 

The OPIC ordered disclosure and UBC sought judicial review of that decision.

We are pleased to report that the order for UBC to disclose the admissions criteria, under the Freedom of Information Act request, has been upheld. Andrew Epstein and Serena Lam, acted as counsel for the respondent journalist,

Read the full Reasons for Judgment HERE.

Why is the decision to disclose, important?

The benefits of a university education are far reaching both in terms of personal growth and financial well-being. As such, it is imperative that the admissions process be fair. This decision is important for university applicants in BC because it upholds the proposition that the application process should be transparent so that everyone knows the standard against which they are being judged. Admittance decisions should not be based on a secret standard that may afford an advantage to some groups and disadvantage others on the basis of arbitrary criteria. Making the rubric public knowledge ensures that the criteria being used to decide on applications is relevant and fairly applied. This, in turn, helps to ensure that applicants are granted entrance to university based on merit and not biased or irrelevant criteria.

The key legal issues addressed in the Reasons for Judgment are summarized below.

Standard of Review

The correct approach is to determine if the decision of the adjudicator was “unreasonable”, which is a much higher standard to meet than “incorrect”, which UBC was pushing.

Section 3(1)(d) – exemptions for a “record of a question”

UBC was seeking a determination that the scoring Rubric was “a record of a question that is to be used on an examination or test,” as defined under s. 3(1)(d) and as a result, it was exempt from production under FIPPA/FOIA.

Justice Russell found that the adjudicator reviewed all relevant law and reached a decision that could not be unreasonable:

[45] I see nothing unreasonable in this finding. The Adjudicator provided cogent and sophisticated reasons for her determination. Moreover, the Adjudicator clearly distinguished the cases cited by UBC, which in any event were not binding on the Adjudicator, as they originated in other provinces.

Section 17(1) – refusal to disclose information that could reasonably be expected to harm a public body’s financial or economic interests

UBC also took the position that the Rubrics were exempt from production because doing so would harm UBC’s financial interest:

17(1) The head of a public body may refuse to disclose to an applicant information the disclosure of which could reasonably be expected to harm the financial or economic interests of a public body or the government of British Columbia or the ability of that government to manage the economy, including the following information: …

Justice Russell quoted at length from the decision of the adjudicator, and summarized that it was not an unreasonable decision in the circumstances:

[54] I find nothing in this analysis to be unreasonable, and UBC has not provided any authority to convince me otherwise.

[55] In its submissions, UBC noted that the appropriate standard of proof for statutory exceptions that use the language “reasonably be expected to harm,” was outlined by the Supreme Court of Canada in Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3. The Adjudicator explicitly referred to this case at para. 48 of her decision, and was cognizant of the appropriate legal test. This militates against any finding of unreasonableness.

Conclusion

Justice Russell dismissed the application for judicial review and awarded costs to the Respondent (Geoff Lister/the Ubyssey)

What happens next?

The Reasons for Judgment were issued January 10, 2017 and UBC has 30 days to file a Notice of Appeal to appeal the decision of Justice Russell to the BC Court of Appeal.

If they do not appeal, then UBC will be required to produce the rubrics and to pay the taxable costs for the hearing.

If you have more questions about information and privacy issues or about how judicial reviews of administrative tribunal decisions work, please contact Andrew Epstein or Serena Lam for more information.