Alberta OIPC Decision Quashed for Reasonable Apprehension of Bias

On February 22nd, the Alberta Court of Queen’s Bench quashed an Alberta OIPC decision because comments made by the Commissioner in the decision gave rise to a reasonable apprehension of bias.

The decision involved an objection to the Commissioner’s jurisdiction to inquire into a complaint made against the Alberta Teachers’ Association. The ATA lodged its objection several months after it had successfully obtained an Alberta Court of Appeal ruling in a separate matter that held the Commissioner had lost jurisdiction for failing to comply with time limits. (The appeal of the Alberta Court of Appeal ruling was just recently heard by the Supreme Court of Canada.) In this context, the ATA raised its jurisdictional objection in a manner that was somewhat snarky. It stated, “you should have come already to the conclusion that you have no more power to continue with the inquiry and should so notify the parties.” And also, “Kindly confirm to the parties at your very earliest opportunity that the inquiry is hereby terminated.”

The Commissioner dismissed the objection and made the following comment:

I make some concluding observations. One is that objections to time extensions add steps that themselves extend the time a matter takes, and expend the resources of this office that could otherwise be used to decide substantive issues. The ATA’s complaint is about the time taken on this matter, yet its objection has further delayed the process.

Further, the objection seems intended to ultimately defeat the purposes of the Act. I recognize that a party acts within its rights in bringing an objection based on timing, and organizations that are prejudiced in their ability to respond by the passage of time should not hesitate to do so. However, the ATA has not indicated how it would be prejudiced if the matter were to proceed. A primary purpose of the Act is to enable me to provide direction to organizations as to whether they are in compliance with their duties under the legislation. In the absence of such prejudice, I would ask respondent organizations, even private ones, to consider whether it is in their own and the public interest to make objections for the purpose of avoiding direction as to how to meet their duties under the legislation. As well, it is disingenuous for organizations to selectively rely on the timing provisions of the Act, or not, depending on whether doing so meets their own interests.

My final observation relates to the tone of the ATA’s letter. It states:

As neither of the tests in paragraph 35 [of the ATA case] can be satisfied in this case, I have concluded that this notice of your default is necessary and should suffice to terminate the inquiry process, in accordance with the presumptive consequence set out in paragraph 37(2) [of the ATA case].

Kindly confirm to the parties at your very earliest opportunity that the inquiry is hereby terminated. Thank you for your immediate attention to this matter.

The decision as to whether this inquiry is to continue must be made by me having regard to the submissions of both parties and the facts and law I regard as relevant. This demand that I terminate the inquiry, at my earliest opportunity, simply on the basis of the ATA’s “notice of my default”, reflects a misunderstanding of the different roles of the parties and the decision maker in this process. The ATA may put forward its views and make submissions, but it is not the decision-maker. Furthermore, while parties need not be deferential, they must be appropriately respectful of the role of the tribunal. I concur with the comment of the Complainant in this case that the demand made by the ATA, as quoted above, is not appropriately respectful.

Justice Graesser held that this comment, and in particular its attribution of dishonesty or a lack of candor to the ATA, gave rise to a reasonable apprehension of bias. He made clear, however, that it was okay for the Commissioner to “call a spade a spade” by criticizing the ATA’s presumptuous and disrespectful submission.

Justice Graesser rejected the ATA’s request to issue an order that would terminate the matter and, instead, ordered its objection to be re-heard by another adjudicator of the OIPC or otherwise delegated decision-making powers by the Commissioner.

Hat tip to Linda McKay-Panos at ABlawg, who summarizes the decision here.

Alberta Teachers’ Association v. Alberta (Information and Privacy Commissioner), 2011 ABQB 19 (CanLII).

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