Date: 20110310
Docket: 11-T-7
Citation: 2011
FC 290
Montréal, Quebec,
March 10, 2011
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
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ROBERT LAVIGNE
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Applicant
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and
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CANADIAN HUMAN RIGHTS COMMISSION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
Mr.
Lavigne seeks, by way of motion, an extension of time to file his Notice of
Application and, if necessary, his affidavit; a sum of $3500 in advance costs
plus disbursements; and such other and further order that the Court sees just
under the circumstances.
[2]
For the
reasons that follow, I have come to the conclusion that Mr. Lavigne’s motion
ought to be dismissed.
I. The facts
[3]
Mr.
Lavigne requested personal information from the Canadian Human Rights Commission
(“the Commission”) on October 7, 2009. During the course of the processing of
that request, the Commission consulted with Canada Post Corporation (“Canada
Post”), as is customary when a third party has an interest in a record and/or
the record originates from that party. In the present case, both criteria were
met. Canada Post objected to the disclosure of the one-page record at issue
based upon s. 27 of the Privacy Act which protects certain information
through solicitor-client privilege.
[4]
On or about
January 11, 2010, the Commission released to Mr. Lavigne all 1879 pages of his
personal information, except the one page objected to by Canada Post and some
other material exempted pursuant to s. 26 of the Act, which protects
information that concerns other individuals.
[5]
On or
about June 24, 2010, Mr. Lavigne filed a Privacy Act complaint based
upon the Commission’s use of these exemptions. On or about October 22, 2010,
the Office of the Privacy Commissioner determined that Mr. Lavigne’s complaint
was well-founded with respect to the s. 27 exemption. The complaint was deemed
resolved, however, as a result of the Commission agreeing to provide to Mr. Lavigne
with the one page that they had sought to protect through s. 27.
[6]
However,
there was a delay in Mr. Lavigne’s receipt of that page because the Commission
then sought Canada Post’s consent to release the record, in accordance with s.
47(3) of the Canadian Human Rights Act. The record at issue emanated
from a conciliation, and s. 47(3) provides that information received by a
conciliator in the course of attempting to reach a settlement of a complaint is
confidential and may only be disclosed with the consent of the person who gave
that information.
[7]
After some
discussion between the Commission and Canada Post, the latter finally consented
to the release of the record on February 9, 2011. There is no dispute that Mr.
Lavigne has now received the one page at issue.
II. The issues
[8]
The motion
filed by Mr. Lavigne raises three issues:
a. Has Mr. Lavigne met the criteria
for granting an extension of time to file his Notice of Application?
b. Should Mr. Lavigne be granted
an additional extension beyond the time allotted in the Federal Courts Rules
to file his affidavit materials? and
c. Does Mr. Lavigne meet the
criteria for the awarding of advance costs?
Of course, the second and third questions need only be
answered if the Court comes to the conclusion that Mr. Lavigne should be
granted an extension of time to file his Notice of Application.
III. Analysis
[9]
It is
trite law that for an extension of time to be granted, an applicant must
demonstrate:
i.
That he
had a continuing intention to pursue his application;
ii.
That the
application has some merit;
iii.
That no
prejudice to the respondent arises from the delay; and
iv.
That a
reasonable explanation for the delay exists.
[10]
In the
case at bar, there is no need to consider the first, third and fourth criteria,
as the second one is clearly not met.
[11]
In the
application for judicial review that Mr. Lavigne asks permission to file, he
seeks an order from the Court for the release of documents withheld pursuant to
s. 27 of the Privacy Act. Yet, Mr. Lavigne has received all of his
personal information in accordance with the Privacy Act request which he
made. He has received all of the records which the Office of the Privacy
Commissioner recommended for release. Therefore, there is no longer a triable
issue.
[12]
Indeed,
this case is on all fours with the decision of this Court in Connolly v
Canada Post Corporation (2000), 197 FTR 161, aff’d 2002 FCA 50. In that
case, the applicant had similarly applied, pursuant to s. 41 of the Privacy
Act, for review of the manner in which Canada Post dealt with a Privacy
Act request made to the Privacy Commissioner in respect to a refusal by the
Canada Post to provide access to personal information relating to the
applicant. Dismissing the application, Mr. Justice MacKay wrote the following:
9. In this case, at the time
he filed his application for review Mr. Connolly had received copies of all of
the information he had requested to which he was entitled under the Act.
The Court could not order more than that. It has no authority under the Act
to review the process of denial and order any redress where there has been
ultimate release of the information requested. That review may be done by the
Privacy Commissioner in his report of investigation of a complaint. He may
find, as was the case here, that in his opinion the complainant’s Privacy
Act rights were contravened. If it were within the Court’s authority I
would say that clearly seems to have been the case her, over many months, until
the information requested was finally fully released in May 1999. Thereafter,
it could not be said that the applicant’s Privacy Act rights continued
to be infringed.
[13]
In his
application, Mr. Lavigne also asks that the Court order the Commission to pay
$5000 in damages pursuant to s. 41 of the Privacy Act. However, damages
may not be awarded pursuant to the Privacy Act. Both this Court and the
Court of Appeal have repeatedly decided that an award of damages is not
available under the Privacy Act. Once again, Mr. Justice MacKay was
quite explicit in that respect:
10. The rights assessed under
the Privacy Act are those set out in that Act, and any redress
for their contravention exists by virtue of that Act. There is no common
law remedy, and no remedy is provided by the Act, for wrongly
withholding publicly held personal information from the person requesting it.
There is no right to damages under the common law or under the Privacy Act.
[14]
In his
application, Mr Lavigne seeks a declaration that Connelly should not be
followed and that damages can be awarded pursuant to s. 41 of the Privacy
Act. I do not think that it is open for this Court to make such a
declaration. Not only has the decision reached in Connelly been upheld
by the Court of Appeal, but it has repeatedly been followed by this Court: see,
for example, Keita v Canada (Minister of Citizenship and Immigration), 2004 FC 626, at para 12; Murdoch
v Royal Canadian Mounted Police, 2005 FC 420. In this last decision, Mr.
Justice Noël commented:
22. Nor is the Federal Court
able to award any further remedies in a case such as the one at bar. As noted
above, the Federal Court’s jurisdiction to review decisions of the Privacy
Commissioner is found in s. 41 of the Privacy Act for those cases where
access to personal information requested under s. 12 has been refused and s.
18.1(3) of the Federal Courts Act. In addition to this, the power of the
Federal Court to grant a remedy in such a situation is largely restricted to
those which the Privacy Commissioner itself could order, i.e., the ordered
disclosure of non-disclosed documents (see ss. 48-50 of the Privacy Act
and s. 18.1(4) of the Federal Courts Act). Here, no such information has
remained undisclosed, and so this remedy would not be appropriate.
See also: Galipeau v Canada (Attorney General), 2003 FCA 223, at para 5.
[15]
Mr.
Lavigne submitted that these decisions ought to be reviewed on the basis that
they are inconsistent with the case law that has developed in the context of
the Official Languages Act. It is true that courts have sometimes
granted damages for infringements of that Act, on the basis of a provision (s.
77) that is worded similarly to s. 48 of the Privacy Act. In both cases,
the Court is given jurisdiction to grant a remedy or to make such order as it
consider or deems “appropriate”. But similarity of language is not enough. The
scheme of those two Acts must also be taken into consideration. While the Official
Languages Act creates a number of rights or duties, the Privacy Act only
envisions the right for an individual to obtain information. In that context, I
do not think it would be appropriate to expand the remedies a Court may grant
on judicial review to encompass damages. As the Court of Appeal stated in Connelly,
supra, this is a matter better left to Parliament if it sees fit to
intervene.
[16]
The
Applicant not having met the second criteria of the Hennelly test, his
motion to extend the time to file his Notice of Application must therefore be
dismissed. That being the case, there is no need to consider the second and
third issues raised in his motion.
ORDER
THIS COURT ORDERS that the motion is dismissed,
without costs.
"Yves
de Montigny"
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