Date: 20090218
Docket: T-1349-06
Citation: 2009 FC 170
Ottawa, Ontario, February 18, 2009
PRESENT: The
Honourable Mr. Justice Mandamin
BETWEEN:
MARK WAXER
Applicant
-
and -
PETER MCCARTHY
Respondent
-
and -
J.J.
BARNICKE
Respondent
-
and -
THE
PRIVACY COMMISSIONER OF CANADA
Added
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Applicant, Mark Waxer, applies to strike
the Respondent Peter McCarthy’s amendments to his Motion Record.
[2]
Mr. Waxer has applied to this Court for a review of his privacy complaint
pursuant to section 14 of the Personal Information and Protection of
Electronic Documents Act, S.C. 2000, c.5 (the “PIPEDA”). On motion
by Martha McCarthy on November 23, 2008, I ordered removing Ms.
McCarthy as an Added Respondent to this proceeding. I provided that the remaining
parties to the Application were entitled to consider amending their Motion
Records because the Motion Record and Affidavit of Ms. McCarthy were no longer
a part of the record in the Application:
Accordingly, an order will issue that Ms. McCarthy is
to be removed as a party in this proceeding; that her motion record and
affidavit will not be considered in the course of this proceeding and there
will be an adjournment to allow counsel to decide whether they need to amend or
augment their motion records.
[3]
Peter McCarthy subsequently submitted an Amended Motion
Record which contained much of the information from Ms. McCarthy’s Motion
Record concerning matters relating to Mr. Waxer’s family law proceedings. Mr.
McCarthy also added material as to how he became involved in this matter.
[4]
Mr. Waxer objects to Mr. McCarthy’s amendments to his Motion
Record.
[5]
As a result, I must decide whether the Mr. McCarthy’s Amended
Motion Record should be admitted in whole or in part in this application.
ISSUE
Should the portions of the Respondent
Peter McCarthy’s Amended Motion Record relating to the family law proceeding be
struck?
[6]
To answer this question, I have to consider what evidence is relevant in
the de novo review of the PIPEDA complaint of Mr. Waxer.
Applicant’s Submissions
[7]
Mr. Waxer seeks to strike the amendments to Mr. McCarthy’s Motion Record,
pursuant to Rule 221(1) of the Federal Courts Rules, SOR/98-106, because
the amendments relate to a family law dispute between Mr. Waxer and his ex-wife
(who was represented by Ms. McCarthy).
[8]
Mr. Waxer argues that Mr. McCarthy has acted contrary to my order by
including the materials that were in Ms. McCarthy’s evidence regarding the
“separate and unrelated family law proceeding” in his Amended Motion Record.
Mr. Waxer seeks to have the portions of the Amended Motion Record dealing with
the family law dispute struck. He also seeks costs of this motion.
Respondent McCarthy’s
Submissions
[9]
Mr. McCarthy argues that my order specifically contemplates the
amendment and augmentation of the parties’ respective motion records. Further,
he submits that Rule 221(1) of the Federal Courts Rules is not
applicable to applications.
[10]
Mr. McCarthy argues that Part 4 of the Federal Courts Rules applies
to all those proceedings that are not applications. Rule 169 provides that
Part 4, which includes Rule 221(1), applies to all proceedings that are not
applications (or appeals). As a result, a motion to strike under Rule 221(1)
cannot be considered in the case at bar because the proceeding is not an
action, it is an application. Further, Rule 221(1) applies to pleadings, not
material filed on an application. Mr. McCarthy also submits that the wording
of Rule 221 indicates that the motion to strike is a discretionary power in the
hands of the Court, and that in this case the Court should leave the amendments
in place as they relate to the proceeding before it.
[11]
Mr. McCarthy is of the view that I had not found, in my November 23, 2007
rder, that the family law proceeding was a “separate unrelated legal
proceeding”. Rather, he argues that I found that any allegations that the
Applicant was making against Martha McCarthy were separate from the allegation
raised against Peter McCarthy and J.J. Barnicke.
[12]
Mr. McCarthy submits that evidence pertaining to the family law
proceeding is relevant and ought to be before the Court on the hearing of the
application. This scenario, according to Mr. McCarthy was specifically
contemplated in my Order as is evidenced by the granting of an adjournment to
allow counsel to decide whether they needed to amend or augment their motion
materials.
[13]
Mr. McCarthy submits that prima facie relevant evidence is
admissible, subject to the Court’s discretion to exclude where the probative
value is outweighed by its prejudicial effect. He argues, citing The Law of
Evidence in Canada, 2nd ed., that:
the admissibility of evidence
depends on its character and not upon its weight. If a piece of evidence is
reasonably relevant, and not obnoxious to any exclusionary rule, it is
admissible although its weight may not be very great.
[14]
Mr. McCarthy argues that it is important that this Court be afforded the
opportunity of reviewing the factual underpinnings which ultimately led up to
the Privacy Commissioner’s findings. He contends that the Applicant is
improperly attempting to keep relevant evidence from this Court simply because
it is unfavourable to him.
Added Respondent Privacy
Commissioner’s Submissions
[15]
The Privacy Commissioner limited its submissions to the relevance of:
a.
the Applicant’s motive for initiating this application; and
b.
the Applicant’s private life and personal circumstances.
[16]
The Privacy Commissioner takes no position on what, if any, portions of
the Mr. McCarthy’s Amended Motion Record could be characterized as evidence
relating to the Applicant’s motive for initiating this application and the
Applicant’s private life and personal circumstances.
[17]
The Privacy Commissioner states that
the jurisprudence is clear, evidence going to an applicant’s motive will not
assist a respondent to establish a defense on the merits. The Privacy
Commissioner submits that the relevance of motive is limited to the assessment
of damages owing, if any, and not as a potential bar to the action itself.
LEGISLATION
[18]
Section 14(1) of PIPEDA provides:
Application
14. (1) A complainant may, after receiving the
Commissioner’s report, apply to the Court for a hearing in respect of any
matter in respect of which the complaint was made, or that is referred to in
the Commissioner’s report, and that is referred to in clause 4.1.3, 4.2,
4.3.3, 4.4, 4.6, 4.7 or 4.8 of Schedule 1, in clause 4.3, 4.5 or 4.9 of that
Schedule as modified or clarified by Division 1, in subsection 5(3) or 8(6)
or (7) or in section 10.
|
Demande
14. (1)
Après avoir reçu le rapport du commissaire, le plaignant peut demander que la
Cour entende toute question qui a fait l’objet de la plainte — ou qui est
mentionnée dans le rapport — et qui est visée aux articles 4.1.3, 4.2, 4.3.3,
4.4, 4.6, 4.7 ou 4.8 de l’annexe 1, aux articles 4.3, 4.5 ou 4.9 de cette
annexe tels que modifiés ou clarifiés par la section 1, aux paragraphes 5(3)
ou 8(6) ou (7) ou à l’article 10.
|
[19]
The Federal Court Rules provide:
Application of this Part
169. This Part applies to all proceedings
that are not applications or appeals, including
(a)
references under section 18 of the Citizenship Act;
(b)
applications under subsection 33(1) of the Marine Liability Act; and
(c) any other proceedings required or
permitted by or under an Act of Parliament to be brought as an action.
Motion to strike
221. (1)
On motion, the Court may, at any time, order that a pleading, or anything
contained therein, be struck out, with or without leave to amend, on the
ground that it
(a)
discloses no reasonable cause of action or defence, as the case may be,
(b) is
immaterial or redundant,
(c) is
scandalous, frivolous or vexatious,
(d) may
prejudice or delay the fair trial of the action,
(e)
constitutes a departure from a previous pleading, or
(f) is
otherwise an abuse of the process of the Court,
and may order the action be
dismissed or judgment entered accordingly.
|
Application
169.
La présente
partie s’applique aux instances, autres que les demandes et les appels, et
notamment :
a) aux renvois visés à l’article 18 de la Loi
sur la citoyenneté;
b) aux demandes faites en vertu du
paragraphe 33(1) de la Loi sur la responsabilité en matière maritime;
c) aux instances introduites par voie d’action sous
le régime d’une loi fédérale ou de ses textes d’application.
Requête en radiation
221. (1) À tout moment, la Cour peut, sur requête,
ordonner la radiation de tout ou partie d’un acte de procédure, avec ou sans
autorisation de le modifier, au motif, selon le cas :
a) qu’il ne révèle aucune cause d’action
ou de défense valable;
b) qu’il n’est pas pertinent ou qu’il est
redondant;
c) qu’il est scandaleux, frivole ou
vexatoire;
d) qu’il risque de nuire à l’instruction
équitable de l’action ou de la retarder;
e) qu’il diverge d’un acte de procédure
antérieur;
f) qu’il constitue autrement un abus de
procédure.
Elle peut aussi
ordonner que l’action soit rejetée ou qu’un jugement soit enregistré en
conséquence.
|
ANALYSIS
[20]
Where the Privacy Commissioner has issued a report of findings and
recommendations, as is the case here, an applicant is permitted under section
14(1) of the PIPEDA, upon receipt of the Privacy Commissioner’s report,
to apply for a hearing de novo, “in respect of any matter in which the
complaint was made, or that is referred to in the Commissioner’s report…”.
[21]
Since Rule 221(1) applies to actions, I agree it is not a basis for
striking parts of a motion record.
[22]
Given that I granted leave to the parties to amend their respective
motion records by my Order dated November 23, 2007, I consider it appropriate
to apply Rule 75(1), the Amendments with Leave provision. Rule 75(2) limits 75(1)
such that no amendment shall be allowed unless the purpose is to make the
document accord with the issues at the hearing.
[23]
I now turn to the question of the relevance of the Applicant’s motive
and personal circumstances.
Relevance of Applicant’s Motive
[24]
In Canada (Information Commissioner) v. Jaques-Cartier and
Champlain Bridges Inc., [2000] F.C.J. No. 121, at para. 42, Justice
Blais stated in the context of a judicial review that:
[t]here is no need for me to rule on the possible reasons
why someone might be making a legitimate request for access to information.
[25]
In Canada
(Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted
Police), 2003 SCC 8, at para. 32,
Justice Gonthier for the Court stated:
it is the nature of the information itself that is relevant -- not
the purpose or nature of the request. The Privacy Act
defines "personal information" without regard to the intention of the
person requesting the information. Similarly, s. 4(1) of the Access Act provides that every Canadian citizen and
permanent resident "has a right to and shall, on request, be given access
to any record under the control of a government institution". This right
is not qualified; the Access
Act does not confer on the heads of government institutions the power to
take into account the identity of the applicant or the purposes underlying a
request. (underlining in original)
[26]
In Maheu v. IMS Health Canada,
2003 FCA 462, at para. 5, Justice Evans held that, in determining whether an
application for judicial review is frivolous and vexatious for the purpose of an
order for security for costs under 416(1)(g) of the Federal Courts Rules,
the Court is only entitled to consider whether there is any possibility that
the application could succeed.
[27]
In Rousseau v. Canada (Privacy Commissioner), 2008
FCA 39, at para. 9, Justice Décary held that once an applicant has met the
threshold for applying to this Court under s.14 of the PIPEDA for a
hearing de novo, the applicant’s motivation for doing so is irrelevant:
9 We have been
informed at the hearing that as a result of a successful claim filed by Mr.
Rousseau with the Ontario Superior Court of Justice, the matter between Mr.
Rousseau and his insurer was settled. However, Mr. Rousseau is still seeking access
to the notes. He is entitled to or he has a right under the PIPED Act to
pursue his application, regardless of motivation. (see Canada
(Information Commissioner) v. Canada (Minister of Citizenship and Immigration) [2002]
F.C.J. No. 950, 2002 FCA
270 at para. 9). He did not file any representations
in this appeal and his interests are defended by the Privacy Commissioner.
(underlining added)
[28]
I conclude that the motive of the Applicant is not relevant in an
application for a review of a PIPEDA privacy complaint.
Relevance of the Applicant’s personal circumstances
[29]
The removal of Ms. McCarthy as an Added Respondent also removed her
Motion Record from consideration in this proceeding (My Order, dated November
23, 2007, at para. 8). The matters that were of concern for Ms. McCarthy are not
matters relevant to Mr. Waxer’s PIPEDA privacy complaint against the
Respondents Peter McCarthy and J.J. Barnicke with the exception of how Mr.
McCarthy came to be involved with Mr. Waxer. To allow the Respondent to submit
evidence concerning the family law proceeding would allow Mr. McCarthy to
achieve indirectly what I had directly excluded.
[30]
Mr. Waxer’s intent in filing the PIPEDA complaint is irrelevant.
As a result, the family law materials which, Mr. McCarthy submits, serve as the
factual underpinning of this application are also irrelevant. Whatever Mr.
Waxer’s intent, it has no bearing on determining whether the Applicant’s PIPEDA
rights were breached. The family law evidence Mr. McCarthy is seeking to
have admitted should not be considered if its sole purpose is to impugn the Mr.
Waxer’s character. The issue here is whether a breach of Mr. Waxer’s PIPEDA
rights has occurred.
[31]
For complainants who are already of the view that their privacy has been
violated, the prospect of a public proceeding to protect their rights becomes
even more daunting when having to defend their personal character or having
irrelevant private facts publicized in order to obtain a remedy for a
respondent’s breach. Evidence of bad character alone is of no relevance to any
privacy matter properly in issue before this Court. Parties to a public
hearing should be discouraged from filing such materials.
[32]
I conclude that the evidence dealing with Mr. Waxer’s personal
circumstances, namely the family law dispute between Mr. Waxer and his ex-wife,
is irrelevant as to whether the Applicant’s PIPEDA rights were breached.
[33]
However, the exception I spoke of, the information
conveyed to Mr. McCarthy that prompted him to act as he did, does not speak to Mr.
Waxer’s motive in filing the PIPEDA application but rather to Mr.
McCarthy’s motives. This information does not relate to Mr. Waxer’s motive or personal
circumstances and will be allowed to remain on the record.
CONCLUSION
[34]
Mr. Waxer has put forth a motion to strike paragraphs
1, 2, 9, 14, 17-20, 24-28 and 48 of Mr. McCarthy’s Amended Motion Record.
He does not refer to the remaining amendments which do refer to the family law
proceeding or Ms. McCarthy.
[35]
The following paragraphs will not be struck for
the respective reasons:
a.
Paragraph 1: The
information contained therein is information which Peter McCarthy would have
knowledge of. Further, it does not speak to the Applicant’s intent or motive
in filing this application.
b.
Paragraph 2: The
portion of the paragraph dealing with the Privacy Commissioner’s finding will
not be struck: “Despite a finding of the Privacy Commissioner that there was no
improper collection of information regarding Waxer and the complaint was
dismissed.” It is information which is available to all parties through the
Privacy Commissioner’s Report.
c.
Paragraph 9: Subsections
(a)-(f) will not be struck. Subsection (a) is the essences of what Mr.
McCarthy learned from his sister. Subsection (f) is a finding made by the
Privacy Commissioner at first instance.
d.
Paragraph 20: It
is information describing a conversation between Ms. McCarthy and Peter
McCarthy.
e.
Paragraph 26: It
does not speak to the Applicant’s motive of filing the PIPEDA application,
rather it speaks to Mr. McCarhy’s motive in sending out the one line email.
f.
Paragraph 48: The
portion of the paragraph which seeks to distinguish Morgan v. Alta Flights
(Charters) Inc., [2005] F.C.J. No. 523, from the case at bar is not struck:
“Contrary to the argument put forward by the Applicant … information sought by
an organization is, in fact, collected.”
[36]
The following paragraphs will be struck for the respective reasons:
a.
Paragraph 2: The portion of the paragraph
explaining Mr. McCarthy’s view of why Mr. Waxer is using the PIPEDA process
speaks to the Applicant’s intent and motive and is therefore not relevant to
whether his PIPEDA rights were breached: “Waxer has used this
application … in their family law proceeding.” As a result, this portion will
be struck.
b.
Paragraph 14: Speaks to
the motive of Mr. Waxer’s filing of the PIPEDA application.
c.
Paragraph 17: Is
a transcript of the phone message left by Mr. Waxer on the voicemail of Ms.
McCarthy. While Mr. McCarthy would have knowledge of the call being made this
would not be true of the phone message itself or the words used.
d.
Paragraph 18: As
in paragraph 17, this is merely a transcript of the above voicemail.
e.
Paragraph 19: It speaks
to the family law proceedings.
f.
Paragraph 25: It
discusses outcomes in the family law proceeding.
g.
Paragraph 26: This
relates to the family law proceeding.
h.
Paragraph 27: It
discusses outcomes in the family law proceeding.
i.
Paragraph 28: It
discusses outcomes in the family law proceeding.
j.
Paragraph 48: The
portion of this paragraph which deals with the Applicant’s intent in filing
this application will be struck: “Waxer is using this application for an
improper purpose. It is part of his ongoing campaign to harass his former
wife’s counsel, Ms. McCarthy.”
ORDER
THIS COURT
ORDERS that
- Paragraphs 14, 17, 18, 19, 25, 26,
27, 28, and the denoted portions of paragraphs 2, and 48, are struck from
the Respondent McCarthy’s Amended Motion Record.
- As success was divided, costs are
in the cause.
__”Leonard S. Mandamin”__
Judge