FCA quashes access decision for failure to give reasons

On September 4th, the Federal Court of Appeal quashed an access decision made under the federal Privacy Act because an institution’s access decision, considered in light of the record put before the Court on judicial review, was inadequate.

The record before the Court consisted of:

a decision letter that claimed two exemptions to the right of access without reasoning and that did not identify the decision-maker;
a “relatively thin affidavit”; and
copies of produced and withheld documents.

Although the adequacy of reasons jurisprudence now gives statutory decision-makers significant latitude in describing why they reach a decision, the Court nonetheless held that the record of the access decision before it was so devoid of substance that it rendered a meaningful review of the decision impossible. It then gave federal institutions general advice on how to ensure an adequate record of an access decision, ending with the following summary:

To reiterate, all that is needed is sufficient information for a reviewing court to discharge its role. In cases like this, this can be achieved by ensuring that there is information in the decision letter or the record that sets out the following: (1) who decided the matter; (2) their authority to decide the matter; (3) whether that person decided both the issue of the applicability of exemptions and the issue whether the information should, as a matter of discretion, nevertheless be released; (4) the criteria that were taken into account; and (5) whether those criteria were or were not met and why.

The Court also warned that institutions can only supplement their decision letters to a limited degree by filing affidavits in the judicial review procedure. It held that such affidavits may only “point out factual and contextual matters that are not evident elsewhere in the record that were obviously known to the decision-maker” and “provide the reviewing court with general orienting information.”

Leahy v Canada (Citizenship and Immigration), 2012 FCA 227 (CanLII).

Alberta court issues important e-FOI decisions – faculty e-mails not in custody or control

The Alberta Court of Queen’s Bench issued a pair of judgements about access to faculty e-mails on April 23rd, ultimately deciding that the Alberta OIPC erred in finding that faculty member e-mails relating to participation on a Social Sciences and Humanities Research Council of Canada committee were in the custody or control of the University of Alberta.

Here are the four points of significance.

First, the Court held that the standard of review for custody or control decisions is reasonableness based on the strong presumption established by the Supreme Court of Canada last December in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association. This is a change, albeit a predictable one in light of Alberta Teachers’ Association. Despite the outcome in this case, custody or control decisions will generally be harder to challenge on judicial review than in the past.

Second, the Court held that the Association of Academic Staff of the University of Alberta did not have a right to notice of standing in the OPIC’s hearing as an affected party or as a matter of fairness. It held that the AASUA interest in the precedential effect of the OIPC’s finding did not give it an interest in the request under appeal sufficient to justify a right to notice and standing.

Third, the Court held that the OIPC erred in finding that the records at issue were under the university’s custody or control.

In part, the Court’s reasoning highlights the growing importance of assessing the purpose of access to information legislation in deciding custody or control issues. It held the OPIC erred by failing to recognize that the faculty member’s e-mails related to a grant funding process in which the university had no role. They therefore shed no light on the university’s own operation in furtherance of the statutory aims. Rather, the records at issue shed much more light on another public institution’s operations, something the Court said the OIPC also ought to have considered.

The Court’s reasoning also suggests that standard technical processes used in the management of business e-mail systems will not govern whether e-mails are in the custody or control of a public institution. It held that the OIPC erred by inferring too much from the routine backup of e-mails and the right to monitor. The Court said, “It was unreasonable to focus on the general computer use policy, rather than considering the particular records in question.”

Finally, the Court declined to address a bold argument by the AASUA that all records produced by faculty members in the course of participating in external committee work and in the context of their internal research and other academic work are not subject to a university’s custody or control. The Court said, “Academic freedom may be one relevant factor in considering whether a university has custody or control of records, but until the Commissioner considers that question in a hearing that raises the issue at first instance, this Court need not address it here.”

University of Alberta v. Alberta (Information and Privacy Commissioner), 2012 ABQB 247 (CanLII) (standard of review, custody or control).

Association of Academic Staff of the University of Alberta v University of Alberta, 2012 ABQB 248 (CanLII) (notice and standing).

Information About Landlords not Personal Information

On September 30th the Ontario Superior Court of Justice held that certain information about residential landlords was not their personal information in the circumstances.

The issue arose in an application that challenged a municipal by-law requiring landlords to obtain licenses for residential rental units. The by-law required landlords to submit information in support of a license (including name, telephone number and address information). The by-law also required a copy of an issued license (which included similar information) to be posted. The applicants argued that the by-law conflicted with the Municipal Freedom of Information and Protection of Privacy Act.

The Court held that MFIPPA’s privacy protection part was not engaged because the information at issue was information that identifies an individual in a business capacity rather than personal information. Justice Leitch explained:

In my view, landlords who lease Rental Units are engaged in business whether or not the landlord is an individual leasing a Rental Unit in his own home or a corporate landlord leasing units in a large apartment building. Both landlords are operating a business. As a result, I am satisfied that the Licensing By-law does not conflict with the provisions of the MFIPPA which protects personal information because the information requested comes within the exclusion set out in s. 2(2.1) of MFIPPA. It is contact information that identifies the individual in a business capacity.

It appears this was the same finding reached by the Information and Privacy Commissioner/Ontario in a previously decided privacy investigation report that dealt with the by-law. The IPC intervened and argued that the Court should not re-decide the issue or, alternatively, adopt the IPC’s finding. The Court rejected the IPC’s argument because of the IPC’s limited jurisdiction to hear and decide privacy complaints.

London Property Management Association v. City of London, 2011 ONSC 4710 (CanLII).

NBCA Says Pre-Existing Alcohol Problem Not a Prerequisite to Random Alcohol Testing

Last Thursday the New Brunswick Court of Appeal issued a rather remarkable decision in which it held that employers who manage “inherently dangerous” workplaces do not require evidence of a pre-existing alcohol problem to justify random alcohol testing.

The decision is most remarkable for its approach. Specifically, Justice Robertson held that a great need for policy guidance, especially in light of conflicting arbitral jurisprudence, justified review on the correctness standard:

Certainly, the Supreme Court has yet to accord deference to an administrative tribunal with respect to questions of law umbilically tied to human rights issues: see Jones and de Villars, Principles of Administrative Law, 5th ed. (Toronto: Carswell, 2009) at 553. Similarly, the Supreme Court has held various privacy commissioners do not have greater expertise about the meaning of certain concepts found in their respective statutes which limit or define their authority: see Jones and De Villars at 553, note 223. Accepting that no analogy is perfect, I see no reason why this Court should depart from those precedents. Indeed, if one looks to the arbitral jurisprudence, one is struck by the reliance on judicial opinions touching on the matter. The overlap reflects the general importance of the issues in the law and of the need to promote consistency and, hence, certainty, in the jurisprudence. Finally, I am struck by the fact that there comes a point where administrative decision makers are unable to reach a consensus on a particular point of law, but the parties seek a solution which promotes certainty in the law, freed from the tenets of the deference doctrine. In the present case, it is evident that the arbitral jurisprudence is not consistent when it comes to providing an answer to the central question raised on this appeal. Hence, it falls on this Court to provide a definitive answer so far as New Brunswick is concerned. This is why I am prepared to apply the review standard of correctness. But this is not to suggest that I am about to ignore the arbitral jurisprudence which has evolved over the last two decades. Let me explain.

Justice Robertson’s “let me explain” line leads to a full analysis of the cross-Canada arbitral jurisprudence in an attempt to derive a principle for the justification of random alcohol testing respectful of arbitral efforts. In the end, he says:

As matter of policy, this Court must decide whether an employer is under an obligation to demonstrate sufficient evidence of an alcohol problem in the workplace before adopting a policy requiring mandatory random alcohol testing. In my view, the balancing of interests approach which has developed in the arbitral jurisprudence and which is being applied in the context of mandatory random alcohol testing warrants approbation. Evidence of an existing alcohol problem in the workplace is unnecessary once the employer’s work environment is classified as inherently dangerous. Not only is the object and effect of such a testing policy to protect the safety interests of those workers whose performance may be impaired by alcohol, but also the safety interests of their co-workers and the greater public. Potential damage to the employer’s property and that of the public and the environment adds yet a further dimension to the problem and the justification for random testing. As is evident, the true question is whether the employer’s workplace falls within the category of inherently dangerous. It is to that issue I now turn.

On the facts, Justice Robertson held that Irving’s kraft mill met the “inherently dangerous” criterion, a finding made somewhat easy by the arbitration board’s finding that Irving’s workplace was “dangerous,” but not dangerous enough to justify random alcohol testing without evidence of a workplace substance abuse problem.

Syndicat canadien des communications, de l’énergie et du papier, section locale 30 c. Les Pâtes et Papier Irving, Limitée, 2011 NBCA 58 (CanLII).

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).

Alberta CA Addresses Jurisdiction to Consider Alleged Privacy Breach by Privacy Commissioner

On February 3rd, the Alberta Court of Appeal considered who has jurisdiction to consider an alleged privacy breach by the Alberta Office of the Information and Privacy Commissioner. It held that the proper means to allege a breach of the OPIC’s confidentiality duty in the Alberta Personal Information Protection Act is by filing an application for judicial review and not by seeking appointment of a special adjudicator under the Alberta Freedom of Information and Protection of Privacy Act.

The complainant first filed a complaint to the OPIC under PIPA. He later took issue with the OIPC itself when it copied the respondents on a letter dismissing his complaint as constituting an abuse of process. The complainant alleged a breach of section 41 of PIPA, which imposes a duty of confidentiality on the OPIC that expressly permits disclosures that are necessary for the purposes of conducting an investigation and inquiry. He sought and obtained an order appointing a special adjudicator to investigate a complaint against the Commissioner under provisions allowing for such an appointment in the Alberta FIPPA.

The Court of Appeal held that the adjudicator did not have jurisdiction to hear the complaint because of an exclusion provision in Alberta FIPPA for “a record that is created by or for or is in the custody or under the control of an officer of the Legislature and relates to the exercise of that officer’s functions under an Act of Alberta.” The Court held that the adjudicator (deciding on his own jurisdiction) and the reviewing judge erred by finding that this provision excluded certain records from the right of public access but did not exclude complaints about the disclosure of personal information in such records. It held that absolute exclusion was supported by the plain language of the exclusion and a contextual reading of the exclusion. It commented on the appropriate remedial path as follows:

However, some recourse does exist in situations where the Commissioner has allegedly improperly disclosed confidential information. He acknowledges that his actions are subject to judicial review, that he may face an action based on abuse of public office given his role as a public official and, also, that he is subject to sanction or removal by the legislature should he engage in improper conduct. That said, somewhat ironically, s. 4(1)(d) protects him from the operation of the same statutory complaint mechanisms as apply to others should he improperly disclose confidential information. This result concerned the Adjudicator and the reviewing judge. If it applied, such a mechanism would provide less expensive, cumbersome and uncertain recourse than that available through judicial review or removal from office by the legislature. However, had the legislature wished the Commissioner to be subject to the same sanctions as other people, it could have included an express provision in FOIPPA to create that result while nonetheless protecting him from release of information properly required in the exercise of his functions.

The Court also held that the adjudicator and reviewing judge erred by grounding jurisdiction in section 77 of the Alberta FIPPA, which grants a right to review certain decisions of the Commissioner when acting as head of the OIPC. It held that the Commissioner does not act as head of the OPIC when exercising his adjudicative functions.

The Court’s interpretation of the records-based exclusion has some significance given the existence of similarly worded exclusions in other public sector access and privacy statutes.

Alberta (Information and Privacy Commissioner) v. Alberta (Freedom of Information and Protection of Privacy Act Adjudicator), 2011 ABCA 36 (CanLII).

Case Report – Div. Court issues significant decision on Ontario FOI exclusions

On March 26th the Divisional Court issued a significant decision on the Information Privacy Commissioner/Ontario’s jurisdiction to oversee claims that records are excluded from public access.

The requester asked the Ministry of the Attorney-General for access to records concerning the handling and progress of a high-profile prosecution. The MAG claimed the records requested were excluded by section 65(5.2) of FIPPA, which states, “This Act does not apply to records relating to a prosecution if all proceedings in respect of the prosecution have not been completed.”

The IPC routinely asks for the records subject to both exclusion and exemption claims, though this practice may be in some flux with respect records claimed to be subject to solicitor-client privilege since the Supreme Court of Canada’s Blood Tribe decision. In this case, when the MAG did not produce records voluntarily, the IPC ordered it to: (1) produce responsive records except those “clearly” subject to a solicitor-client privilege claim; (2) make exemption claims in the alternative to its exclusion claim; (3) prepare and produce an index of records; and (4) provide an affidavit in support of solicitor-client privilege claims.

Though the order was an interim order, the Court decided to hear the MAG application for judicial review. It held that the IPC erred in interpreting the scope of 65(5.2) and made an unreasonable order.

The section 65(5.2) decision is particularly significant given the Court’s finding that IPC erred in reading the words “relating to” as requiring a “substantial connection.” It said:

The meaning of the statutory words “relating to” is clear when the words are read in their grammatical and ordinary sense. There is no need to incorporate complex requirements for its application, which are inconsistent with the plain unambiguous meaning of the words of the statute.

The Adjudicator’s interpretation of the phrase “relating to” is also discordant with the intention of the Legislature. There are no pragmatic or policy reasons to impute a substantial connection requirement and depart from reading the words in their grammatical and ordinary sense in the context of the Act.

The IPC also applies the substantial connection test in adjudicating the employment records and teaching and research records exclusions. Though the language of these exclusions is slightly different than the language of section 65(5.2), the Court’s reasoning casts doubt on the use of the substantial connection test across-the-board.

The Court did not make a finding on whether IPC has the power to order the production of records that are claimed to be excluded nor did it opine on the scope of any such jurisdiction. It simply held that the IPC’s order was unreasonable because it would interfere with the interests the section 65(5.2) exclusion was intended to protect. Its disposition, however, suggests that looking at records claimed to be excluded is not necessary. Rather than send the matter back to the IPC, the Court simply declared that the request was for excluded records and could be brought back on when the underlying prosecution is complete. It did so on the face of the request.

Ministry of Attorney General and Toronto Star, 2010 ONSC 991 (CanLII).

Case Report – FCA quashes order for failure to consider privacy interest of non-party

On February 8th, the Federal Court of Appeal quashed an order by the Public Service Staff Relations Board because it accepted a consent order between a union and several employers that required the employers to disclose employee home addresses and telephone numbers to the union.

The Board held that the employers breached the Public Service Labour Relations Act by failing to provide the union with “some” contact information to facilitate its representational role. It reserved judgment on remedy, raised the issue of employee privacy to the parties and encouraged them to seek agreement on a remedy. The parties later came back before the Board and it endorsed their agreement in a consent order without reasons. The applicant, a one-time advocate against the kind of disclosure agreed to, was not given notice of the hearing. When she learned of the order, she commenced an application for judicial review.

The Court held that the Board erred in law by simply endorsing the consent order and failing to exercise its jurisdiction. The Court explained that this rarely-challenged practice can be fatal when there are non-parties whose privacy interests are affected by an agreement:

The Board was seized of the questions which it had raised because those questions went beyond the interests of the employers and the union and engaged the interests of persons who were not before it. Those persons had statutorily protected privacy rights of which the Board was well aware. The Board had an obligation to consider those rights and to justify interfering with those rights to the extent that it did. It could not abdicate that responsibility by simply incorporating the parties’ agreement into an order.

The Court ordered the matter to be remitted to the Board, ordered it to give notice to the Office of the Privacy Commissioner and suggested that the applicant also be given notice and standing.

For a very different take on non-party privacy and standing, see this decision of the British Columbia Court of Appeal.

Bernard and Canada (Attorney General), 2010 FCA 40 (CanLII).

Bernard and Canada (Attorney General), 2010 FCA 40 (CanLII)

Case Report – Court won’t order disclosure of health professional’s identity

On January 27th, the British Columbia Supreme Court denied a request for an order requiring an online contact lens and eyeglass business to disclose the identity of an eye care professional it employs.

The College sought the identity of the registrant who worked for the respondents (affiliated companies) in the course of an investigation. The College applied to the Court for an order based on the Court’s equitable jurisdiction (a Norwich Pharmacal order), or alternatively, its inherent jurisdiction (in aide of an inferior tribunal).

The Court held that an order should not be made on either basis. This was partly based on a finding that the evidence did not show the unidentified registrant was involved in the matter under investigation. The Court also held that an order would not be appropriate in light of the statutory powers granted to the College. The Court suggested that the College had ample means to identify the registrant without relying on the Court, noting its power to inspect the premises and records of a registrant, the possibility of asking for warrant to search a non-registrant’s premises and the possibility of requiring registrants to file their business address and telephone number.

College of Opticians of British Columbia v. Coastal Contacts Inc., 2010 BCSC 104 (CanLII).

Case Report – Appeal Court interprets Alberta PIPA time limit

On January 27th, a majority of the Alberta Court of Appeal held that the time limit for completing an inquiry or giving notification of a time extension in Alberta PIPA is mandatory, but that non-compliance does not necessarily result in a loss of jurisdiction.

Section 50(5) of Alberta PIPA establishes a time limit for completing an inquiry in the following language:

50(5) An inquiry into a matter that is the subject of a written request referred to in section 47 must be completed within 90 days from the day that the written request was received by the Commissioner unless the Commissioner

(a) notifies the person who made the written request, the organization concerned and any other person given a copy of the written request that the Commissioner is extending that period, and

(b) provides an anticipated date for the completion of the review.

The majority, in a judgment written by Watson J., held that the decision to extent (and notify of the same) must be given before the expiration of the 90 day time period and that the time period is mandatory rather than directory. The majority also held, however, that loss of jurisdiction does not flow from non-compliance if there has been (my emphasis):

(a) substantial consistency with the intent of the time rules having regard to the reason for the delay, the responsibility for the delay, any waiver, any unusual complexity in the case, and whether the complaint can be or was resolved in a reasonably timely manner, and

(b) that there was no prejudice to the parties, or, alternatively, that any prejudice to the parties is outweighed by the prejudice to the values to be served by PIPA.

Berger J. dissented. He held that the time limit was directory and also took issue with the Applicant’s failure to raise a timely objection before the Commissioner.

This has obvious practical significance to the Alberta OIPC and Alberta practitioners. (Alberta FIPPA has a similar time limit.) It is also a significant administrative law decision on the mandatory/directory point that only a lawyer could love. Commissioner Work says he will appeal.

Hat tip to David Fraser. For his Slaw post that includes the relevant context, see here.

Alberta Teachers’ Association v. Alberta (Information and Privacy Commissioner), 2010 ABCA 26 (CanLII).