Nichol v. Radwanski, 2001 FCT 412

                                                                                                                                Date:    20010430

                                                                                                                      Docket No.: T-2341-00

                                                                                                       Neutral Citation: 2001 FCT 412

Ottawa, Ontario, this 30^th day of April, 2001

PRESENT:      THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                      WILLIAM DAVID NICHOL

                                                                                                                                            Applicant

                                                                         - and -

                           GEORGE RADWANSKI, PRIVACY COMMISSIONER and

                                       THE PRIVACY COMMISSION OF CANADA

                                                                                                                                      Respondents

                                            REASONS FOR ORDER AND ORDER

1.                   The applicant's application seeks on order of mandamus compelling the respondent, the Privacy Commission of Canada, and the Privacy Commissioner, to provide a letter of finding pursuant to ss.35(2) of the Privacy Act, R.S.C. 1985, c. P-21. According to the respondent, the letter of finding was delivered to the application around February 27, 2001. Therefore, the respondent has filed this motion to strike the application as being moot.

2.                   The applicant argues that despite the fact that a letter of finding has been provided by the Privacy Commissioner, this Court should review, the "unreasonable" amount of time required to produced the letter. The applicant also seeks costs for this matter.

3.                   This Court has jurisdiction to strike out an application where the application is so clearly improper as to be bereft of any possibility of success^[1], or where it is clear that there relief sought has become moot. The leading case on the doctrine of mootness is Borowski v. Canada (Attorney General)^[2], in which the Court states the following at 353:

                               The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case.

                               [...]

                               The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case.

4.                   The applicant's Notice of Application seeks an order of mandamus compelling the Privacy Commissioner to supply the applicant with a letter of finding. A letter of finding has been provided to the applicant, and therefore, no live issue exists between the parties. Having been supplied with the letter, the applicant has received the very thing that he requested from this Court. Given that the remedy sought by the applicant has been provided, the issue is now moot.

5.                   The next question is whether it is necessary, despite the mootness, for this Court to exercise its discretion to hear the case. The applicant argues that this Court should hear the matter at bar because of the "unreasonable" time it took the Privacy Commissioner to provide the applicant with a letter of finding, and the issue of costs is still outstanding.

6.                   There is no mention in the Privacy Act of specific time frames in which the Privacy Commissioner must issue a letter of finding. Subsection 35(2) of the Privacy Act states that the "Privacy Commissioner shall, after investigating a complaint under this Act, report to the complainant the results of the investigation..." The Privacy Commissioner released his letter to the applicant upon the completion of his investigation, in accordance with ss.35(2). The Privacy Act does not specify a time limit in which the Privacy Commissioner must conduct his or her investigation. Given that the applicant has been provided the very remedy he seeks, it is not for this Court to determine whether the letter was provided in a reasonable amount of time.

7.                   In my view, the application for judicial review does not raise issues which should be allocated scarce judicial resources. There is little to be gained by this Court exercising its discretion to hear the application for judicial review despite it being moot. This Court, therefore, refuses to exercise its discretion to hear the moot issue in the case at bar.

8.                   Although generally costs would follow the result of the case at bar, the respondent specifically states that he does not seek costs against the applicant.

                                                                       ORDER

IT IS ORDERED THAT:

1.         The motion is allowed and the notice of application is struck without costs.

2.                   No costs are awarded on this motion.

                                                                                                                        "Edmond P. Blanchard"                   

                                                                                                                                                   Judge