Case Report – BCCA deals with complaint by employee terminated after background check

On May 7th, the British Columbia Court of Appeal ordered a matter back to the Information and Privacy Commissioner of British Columbia to address whether the Ministry of Children and Family Development breached the accuracy provision of the British Columbia FIPPA by advising one of its funded agencies to supervise a newly-hired employee pending its review of his file.

The Court of Appeal considered a single substantive issue. It held that the OPIC does not have jurisdiction to consider whether a designate of the Minister is authorized to disclose information by section 79(a) of the British Columbia Child, Family and Community Services Act, which authorizes non-consensual disclosures that are “necessary to ensure the safety or well-being of a child.”

The Court of Appeal did, however, remit a different substantive matter back to the OIPC that was apparently raised by the chambers judge on his own motion. The chambers judge had held that the Ministry breached FIPPA’s accuracy provision by basing its supervision recommendation, at least in part, on the existence of an “assessment only” file on the Ministry’s records. The Ministry opened this file as a result of a child services complaint against the employee that the Ministry had determined was beyond its jurisdiction. The chambers judge held that the Ministry breached its duty to “make every reasonable effort to ensure that personal information is accurate and complete” by relying on the “unreliable” file. The Court of Appeal held the chambers judge erred given the OPIC had not made a decision on the accuracy issue, but did remit it back to the OPIC.

Harrison v. British Columbia (Information and Privacy Commissioner), 2009 BCCA 203.

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