In a decision issued February 29, 2016, Justice Morrison of the
NB Court of Queen's Bench, dismissed an appeal which would have
otherwise compelled a University to disclose severance payment
information, which was expressly shielded by a confidentiality
Under the Province's Right to Information and
Protection of Privacy Act (RTIPPA), information
related to the "job classification, salary range,
benefits, employment responsibilities or travel expenses"
for an "officer or employee of a public body"
must be disclosed by the public body, on the basis that RTIPPA
expressly states such personal information is "not an
unreasonable invasion of a third party's privacy."
Public bodies under the Act include: Parts I-IV of the public
service, municipalities and publically-funded universities.
In this case, a union representative issued a right to
information request to a University to provide information related
to "salaries, bonuses, pensions and severance
payments" for senior executives at the institution. The
University provided all data, with the exception of "severance
payment" information, on the basis such information must be
protected from disclosure to avoid unreasonable invasion of
employee privacy. The parties' dispute proceeded before the
Privacy Commissioner, who concluded that severance payment
information was a "benefit" and was, thus, required to be
disclosed pursuant to subsections 21(3)(f) and (h) under RTIPPA.
Despite the fact that the severance data was subject to contractual
confidentiality agreements, the Commissioner ruled that no party
could "contract out" of their obligations under the Act
and confirmed the requirement for disclosure. The University
continued to refuse to disclose the information and the union
appealed to the Court.
In the RTIPPA Appeal, Justice Morrison held that the
Commissioner's broad interpretation of "benefits" did
not "strike the right balance" between the two
fundamental objects of RTIPPA; being privacy on the one hand and
transparency on the other. In upholding the University's
position to refrain from disclosing severance payment information,
the judge concluded:
... severance payments do not fall within the definition of
'benefits' under section 23(3)(f) nor are they a
'discretionary benefit' within the meaning of subsection
(h) of RTIPPA. The disclosure of severance payment information is
therefore deemed to be an unreasonable invasion of a third
party's privacy pursuant to section 21(2)(e). As a result
the [employer] is not required to disclose the payment
Impact On "Public Employers" (Universities,
Municipalities, Public Sector):
Public employers can shield from disclosure any documentation
related to the settlement or severance packages for terminated/laid
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