Voluntary bank disclosure to police lawful

On August 7th, Justice Fuerst of the Ontario Superior Court of Justice held that the police did not breach an individual’s reasonable expectation of privacy by receiving information from two banks and using the information to obtain restraint orders.

The judgement is notable for the Court’s recognition of the banks’ legitimate interest in providing voluntary assistance to the police. Justice Fuerst said:

The bank was directly implicated in allegations of money-laundering. It had a legitimate interest in preventing the criminal misuse of its services, particularly in circumstances where accounts associated to the applicant were alleged to be offence-related property subject to forfeiture.

Disclosing personal information to the police (within certain parameters) is permitted by section sections 7(3)(c.1) and 7(3)(d) of the Personal Information Protection and Electronic Documents Act, which Justice Fuerst noted in her reasonable expectation of privacy analysis. Section 7(3)(d) authorizes disclosures initiated by commercial organizations. Notably, Justice Fuerst held that section 7(3)(d) allows for some two-way dialogue between the disclosing organization and the police: “It is unreasonable to interpret s. 7(3)(d) so narrowly that police officers to whom information is given by organizations like banks about possible criminal activity can do no more than passively receive it and are prevented from asking for specifics or details necessary to take steps in response.”

R v Kenneth James, 2013 ONSC 5085 (CanLII).

Judicial review not the regular means to challenge PIPEDA investigation reports

On January 15th the Federal Court dismissed two judicial review applications brought by a self represented applicant who took issue with two OPC investigation findings made under under PIPEDA. The Court held that an application under section 14 of PIPEDA, which invites a de novo hearing, was an adequate alternative remedy to judicial review:

In conclusion, I find that there is an adequate alternative remedy provided by section 14 of the PIPEDA that would have been the appropriate recourse to deal with all matters raised concerning the complaint, the OPC reports and the investigation that followed. When comparing the recourse provided by section 14 of the PIPEDA with the possibilities offered by judicial review, which is discretionary and extraordinary in nature and limited to the review of the reports and the documentation contained in the certified record, I find that the former is the appropriate recourse as the intent of the legislator to this effect is clear. I will not therefore exercise my discretion to judicially review the reports of the Privacy Commissioner, and I will dismiss both applications for judicial review.

In making this finding the Court suggested that a judicial review application to allege bias or that the OPC committed some other procedural injustice might be amenable to judicial review.

Kniss v Canada (Privacy Commissioner), 2013 FCC 31.

Court understands that PIPEDA does not limit its power to assist execution creditors

The Ontario Superior Court of Ontario issued an endorsement on November 19th that demonstrates a proper understanding of the Court of Appeal for Ontario’s judgement in Citi Cards v Pleasance. Justice Morgan said (with emphasis added):

Both parties’ counsel concede that the mortgage companies are wary about disclosing information about a mortgage debt to anyone other than the debtor himself due to the operation of Ontario’s [sic] privacy legislation . The Personal Information Protection and Electronic Documents Act (“PIPEDA”) would seem to prohibit banks and other organizations from making precisely the type of voluntary disclosure that the Plaintiff seeks. It is little wonder, therefore, that the Plaintiff cannot obtain the up to date mortgage statements by simply asking the mortgagees for them.

The Court of Appeal has pointed out in Citi Cards Canada Inc. v. Pleasance, 2011 ONCA 3 (CanLII), 2011 ONCA 3, at para. 29, that under PIPEDA “[a]n organization may disclose personal information…only if the disclosure is [authorized by one of the exemptions]”. Those exemptions are contained in section 7.3 of PIPEDA. That section provides, inter alia, that disclosure of information is permitted by an organization such as Griffin’s mortgagees where that disclosure is “required to comply with a subpoena or warrant issued or an order made by a court…” The Plaintiff did not join the mortgagees as respondents to the motion before me, but he is of course free to do so at a future date.

The last statement suggests that a Court will entertain a motion for production of a mortgage statement from a mortgagee notwithstanding PIPEDA. Citi Cards says that courts should grant such orders sparingly given PIPEDA protects the privacy of mortgagors but does not mean that a court is prohibited from making such an order. There has been some confusion about this point.

McBean v Griffin, 2012 ONSC 6555 (CanLII).

Federal Court Upholds Pension Regulator’s Refusal to Order Disclosure of Member Information

On July 21, 2011, the Federal Court released a decision in a long running pension fight.  The applicants in Buschau v. Rogers Communications Inc., 2011 FC 911 have been pursuing access to the surplus in their pension plan since 1995.  This decision has been to every level of Court, and sometimes twice.  Most recently, the applicants requested that the Federal Superintendent of Financial Institutions (the “Superintendent”) order that Rogers be required to disclose the following information:

  • the employment and pension data of any new members it proposes to add to the Pension Plan…
  •  the information Rogers has, or should have, as to which members of the Pension Plan it has offered a “buy-out”, the value of such “buy-out” and the members’ acceptance or rejection of such offers…

The applicants purported to require this information to be able to identify potential new members of the Pension Plan to inform them of Rogers’ past actions allegedly taken in bad faith (notwithstanding existing decisions indicating that Rogers has been acting in compliance with legislative requirements) and to determine what happened to any applicable surplus relating to members who accepted a buy-out.

The Superintendent refused to order the disclosure.  The Superintendent determined that the Pension Benefits Standards Act, 1985 (“PBSA”) (the legislation governing the Pension Plan), specifically section 28 and the associated Regulations, set out Rogers’ disclosure requirements and the requested information did not fall within the legislative requirement.  The Superintendent also indicated that Rogers’ was obliged to comply with the provisions of the Personal Information Protection and Electronic Documents Act.  The applicants sought judicial review of the Superintendent’s decision.

The Federal Court agreed with the Superintendent’s determination and found that she decision was reasonable.  Of particular note for plan administrators facing disclosure requests from members, the Federal Court stated the following:

[100]      I find that the Superintendent’s decision in this regard was reasonable. Section 28 of the PBSA sets out the members’ “Rights to Information”. It also indicates that the plan members are entitled to certain information as set out in the Pension Benefits Standards Regulations, 1985, SOR/87-19 [Regulations]. Neither section 28 of the PBSA nor the associated Regulations mandate that the respondent, in the current circumstances, is obligated to disclose the type of information that the applicants are seeking.

This decision is one of the first examining the scope of a plan administrator’s disclosure obligations under the Federal pension legislation.  Plan administrators will likely take comfort in the finding that their disclosure obligations are limited to the specified documents (such as plan texts, amendments, trust agreements, valuation reports, financial statements) and there is no obligation to disclose information outside of the scope of the PBSA requirements if requested to do so by other members.

Federal Court Dismisses PIPEDA Access Application as Resolved

On April 12th the Federal Court dismissed a PIPEDA application, for the most part, because the applicant had been provided her personal information in the course of an Office of the Privacy Commissioner of Canada complaint investigation.

The applicant complained when she only received copies of records in her personnel file in response to an “all personal information” access request. The respondent provided the applicant with additional records in the course of the OPC investigation. The OPC was satisfied, and held the complaint to be well-founded and resolved, and made some recommendation about process that the respondent followed.

The Court held (based on three search affidavits) that the respondent had provided the applicant with all her personal information. It also held that the respondent was at fault for not providing the applicant with all of her personal information in a timely manner, but did not allow the application based on this finding. The basis for this disposition is not clear, but the Court did dismiss a number of remedies the applicant requested as unjustified and beyond its jurisdiction. Its reasoning also suggests that it viewed the applicant’s timeliness allegations as too trivial to be of consequence.

Though the Court dismissed the application, it did not award costs to the respondent because it had attempted to achieve exoneration in the application – an approach the Court said amounted to an unsuccessful cross-application. The applicant was self-represented.

Kollar v. Rogers Communications Inc., 2011 FC 452.

Case Report – SCC says Privacy Commissioner can’t decide privilege claims

The Supreme Court of Canada issued its decision in Blood Tribe earlier today. In a judgement written by Mr. Justice Binnie, it unanimously held that the Privacy Commissioner of Canada does not have the power to compel production of records over which an organization claims solicitor-client privilege. In doing so, the Court affirmed the well-established principle that solicitor-client privilege cannot be abrogated by inference and made its first comments yet on the mandate granted to the PCC by the Personal Information and Protection of Documents Act.

The dispute arose when the respondent to an access to personal information complaint refused to produce records of communications that it claimed to be subject to solicitor-client privilege. In demanding the records be produced, the Commissioner relied on the investigatory powers granted by section 12. Section 12 reads as follows:

12. (1) The Commissioner shall conduct an investigation in respect of a complaint and, for that purpose, may

(a) summon and enforce the appearance of persons before the Commissioner and compel them to give oral or written evidence on oath and to produce any records and things that the Commissioner considers necessary to investigate the complaint, in the same manner and to the same extent as a superior court of record

The Supreme Court held that this provision does not give the PCC the power to compel production of records over which solicitor-client is claimed by mere inference or by necessary implication in light of the PCC’s mandate.

While the principle that solicitor-client privilege can only be abrogated by express statutory language is not new, the Court’s application of the principle in this case demonstrates its strength because (as pointed out by the Information Commissioner in support of the PCC’s appeal), “verification of the privilege is the very object of the Privacy Commissioner’s statutory ombudsperson function and not merely a preliminary step to determine the record’s use for another purpose.”

The Court was not convinced by this argument, especially given the PCC’s mandate, which it characterized as adversarial rather than independent. Though the Court acknowledged that the validity of a solicitor-client privilege claim which is raised in response to a PIPEDA right of access request is of concern to the PCC given her mandate, it said her only valid means of seeking a determination of such a claim is to engage the Federal Court as she is empowered to do under the Act.

Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44.

Case Report – NB court turfs broad challenge to PIPEDA interference with litigation

On January 30th, the New Brunswick Court of Queen’s Bench held that the Federal Court was the appropriate forum for a very broad challenge to the Commissioner’s jurisdiction to investigate a PIPEDA complaint.

The underlying PIPEDA complaint apparently alleged that the applicant, an insurance company, had conducted unlawful surveillance of a plaintiff in a motor vehicle claim. The insurance company asked the New Brunswick court for an order declaring that PIPEDA does not apply to “document disclosure, privilege or other privacy interests” of the plaintiff in relation to his lawsuit or the its defence of the lawsuit. Alternatively, the insurance company asked for an order declaring that PIPEDA is ultra vires the legislative authority of Parliament.

This will be rather interesting if it proceeds in the Federal Court.

State Farm v. Privacy Commissioner and AG of Can., 2008 NBQB 033.

One to watch – Blood Tribe at the SCC

The Supreme Court of Canada is scheduled to hear an appeal of Blood Tribe Department of Health v. Canada (Privacy Commissioner) on February 21, 2008.  The case will present an opportunity for the Court to comment on a principle it first articulated in 1982 in Descoteaux v. Mierzwinski – that laws authorizing interference with solicitor-client privilege must be interpreted restrictively.  Of perhaps greater interest, it will be the Court’s first opportunity to provide significant commentary on the Personal Information Protection and Electronic Documents Act.

The dispute arose when the respondent to a complaint alleging a failure to provide access to personal information refused to produce records of communications that it claimed to be subject to solicitor-client privilege.  In demanding the records be produced, the Commissioner relied on the investigatory powers granted by section 12 of PIPEDA, a broadly-worded provision which does not expressly grant the power to order the production of records over which solicitor-client privilege is claimed. 

Litigation ensued and the Federal Court held that the Commissioner had the power to order production.  It did so by applying a purposive analysis, stressing the Commissioner’s “central role in achieving the important objectives of the legislative scheme.”

The Federal Court of Appeal disagreed with the lower court’s approach, which it found to be inconsistent with the Mierzwinski strict interpretation principle and the concept of solicitor-client privilege as a substantive rule of law.  It stated:

In short, the reason express language is required to abrogate solicitor‑client privilege is because it is presumptively inviolate. The exception for solicitor‑client privilege in the PIPEDA is not what shelters privileged documents from disclosure. The law of privilege does that. The exception simply recognizes that privilege.

There are some finer points to the Federal Court of Appeal’s decision that may also catch the Supreme Court’s interest, including (1) whether the principles developed in interpreting the federal Privacy Act should be applied in interpreting PIPEDA and (2) what effect should be given to language authorizing the exercise of powers “to the same manner and to the same extent as a superior court.”

Blood Tribe is likely to remain relevant given that Parliament’s Standing Committee on Access to Information, Privacy and Ethics made a rather moderate recommendation in its recent Statutory Review of the Personal Information and Electronic Documents Act.  Asked by the Privacy Commissioner to address the gap to her investigatory powers identified by the Federal Court of Appeal in Blood Tribe, the Standing Committee only recommended that PIPEDA be amended to expressly permit her to apply to the Federal Court for an expedited review of solicitor-client privilege claims.