On February 19, 2015, the Supreme Court of Canada declined to
hear an appeal challenging a finding that settlement agreements
reached through the Environmental Appeals Board's mediation
process are privileged. In May 2014, the Alberta Court of Appeal
issued its decision in Imperial Oil Limited v. Alberta
(Information and Privacy Commissioner) where the Court held
that the Alberta Information and Privacy Commissioner
("Privacy Commissioner") erred in concluding that an
agreement between Imperial Oil Limited ("IOL") and
Alberta Environment (as it was then called) reached through a
mediation process was not privileged and therefore had to be
disclosed in response to an information request under the
Province's Freedom of Information and Protection of Privacy
The matter has a lengthy history, but in short:
Between 1923 and 1975 IOL operated an oil refinery in southeast
Calgary, and when the refinery was decommissioned the land was
developed into the Lynnview Ridge residential subdivision.
Petroleum and lead contamination was discovered in the lands after
numerous houses had been built on it. IOL eventually bought back
over 90% of the affected residences.
Commencing in about 2001, Alberta Environment issued
environmental protection orders against IOL to remediate affected
lands. IOL appealed some of those orders to the Environmental
Appeals Board. Section 11 of the Environmental Appeal Board
Regulation contemplates the mediation of appeals as an
alternative to conducting a formal hearing.
After preliminary negotiations, IOL and Alberta Environment
entered into an "Agreement to Mediate" on October 27,
2003. The mediation was ultimately successful and resulted in the
signing of a "Remediation Agreement" in March of 2005. As
a result, Alberta Environment withdrew two environmental protection
orders and IOL abandoned the appeals that it had filed against
those orders. As the Environmental Appeals Board was not required
to adjudicate the dispute, it closed its files.
The City of Calgary later applied for a copy of the Remediation
Agreement under the Freedom of Information and Protection of
Privacy Act. Certain parts of the Remediation Agreement were
made public, and the City was given other portions on conditions
intended to preserve its confidentiality, but Alberta Environment
refused to disclose the entire document on the basis that some
information was confidential and exempt from production.
The City of Calgary then applied to the Privacy Commissioner,
who ordered that the entire Remediation Agreement be disclosed to
the City as it did not fall under any exceptions in the Freedom
of Information and Protection of Privacy Act.
IOL applied for judicial review of the Privacy
Commissioner's decision, and it was quashed by a chambers
The Privacy Commissioner appealed the chambers judge's
decision to the Court of Appeal.
The Court of Appeal upheld the chambers judge's ruling that
the Privacy Commissioner's decision was unreasonable. The Court
of Appeal looked at both the specific language of the Agreement to
Mediate and broader legal principles applicable to settlement
discussions when concluding that the disputed information should
not be disclosed. The Court of Appeal held at paragraphs 52 and
...Not only did the Agreement to Mediate specifically refer to
privilege, it also existed in the context of the common law
assumption that settlement
discussions and mediations are both confidential and
The [Privacy] Commissioner was incorrect in concluding that the
Agreement is not privileged. At common law mediations and the
are privileged...There are a few narrow exceptions, but none
The Court of Appeal dealt with a number of issues regarding
privacy legislation and review of administrative decisions in this
case. However, confirmation of the privileged and confidential
status of settlement agreements reached through the Environmental
Appeals Board's mediation process is a clear and important
finding for parties dealing with environmental regulators in
Alberta. This decision also reaffirms the Environmental Appeals
Board's policies for resolving disputes before it, and
validates the Board's interpretation of its enabling
legislation in this regard.
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guide to the subject matter. Specialist advice should be sought
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