Date: 20110412
Docket: T-518-10
Citation: 2011
FC 452
Vancouver, British
Columbia, April 12, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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EVE KOLLAR
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Applicant
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and
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ROGERS COMMUNICATIONS INC.
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
Ms. Kollar
was employed by Rogers for just over a year. She was
then let go, not for cause, but as part of a corporate reorganization. She agreed
to a severance package. Her severance is not before the Court.
[2]
What is
before the Court is her subsequent endeavour to obtain her personal information
from Rogers, as she was entitled to do
under the Personal Information Protection and
Electronic Documents Act
(PIPEDA). She complained to the Office of the Privacy Commissioner that Rogers did not provide her with all
the information it had on file in a timely manner. By the end of the Privacy
Commissioner’s investigation, Rogers had provided further
documentation and stated that other documentation Ms. Kollar sought could not
be found. The Commissioner held the complaint was well-founded in that the
information was not provided within time, but that the matter was resolved.
Rogers was strongly recommended to ensure that employees dealing with such
privacy-related requests are aware of the procedures in place and understand
the importance of responding to requests in a timely manner and with due
diligence. Rogers appears to have taken that
recommendation to heart as evidenced by subsequent Human Resources bulletins.
[3]
Not
satisfied with the decision, Ms. Kollar has applied to this Court for a hearing
as permitted by section 14 of PIPEDA. It is well established that such an
application is not by way of judicial review but rather is de novo,
so that further evidence is permitted (Englander v Telus Communications Inc,
2004 FCA 387, [2005] 2 FCR 572 (FCA) at para 48).
[4]
Thus, I am
not bound to uphold the decision even if I consider it reasonable based on the
material before the Commission.
[5]
To quote
the application, Ms. Kollar seeks:
i. Fairness and justice in the
decision-making process;
ii. Declaring that the complaint
is well-founded;
iii. Directing the Respondent to
correct its practices;
iv. Directing the
Respondent to publish a notice in its Employee’s Newsletter;
v. Damages to the
Applicant;
vi. Applicant’s costs
be paid by the Respondent; and
vii. Such further
action as this Honorable Court deems appropriate for not complying with
applicable laws.
[6]
Faced with
this application, Rogers went on the offensive and
asks the Court to hold that it had in fact responded to Ms. Kollar’s request in
a timely manner.
I. Background
[7]
By letter
Ms. Kollar requested personal information from Rogers which she broke down into seven
categories, including “personnel file(s)” and “any and all other information”. Rogers replied within 30 days and
provided her with the documents in her personnel file which had been maintained
in hard copy form.
[8]
Ms. Kollar
responded by identifying 19 documents or categories of documents she considered
were missing. Rogers acknowledged her letter and
stated it would look into the matter. More than a month went by without further
word, so Ms. Kollar complained to the Privacy Commissioner’s Office.
[9]
It took Rogers more than a year to
definitively provide further documentation and to declare that it no longer had
other documentation sought. Rogers would like to take the position that it had
in fact responded in May 2009, which response included a letter of apology for
not responding earlier, but Ms. Kollar denies receiving that documentation, and
Rogers was unable to establish that the letter of apology ever went beyond a
draft form, and that any documentation had been sent at that time.
Documentation was sent in December 2009.
[10]
In its
decision of February 16, 2010, the Office of the Privacy Commissioner was
satisfied that by then Ms. Kollar had been provided with access to all her
personal information held by Rogers. It concluded that the
complaint was well-founded but resolved, based on subsections 8(3) and 8(5) of
the Act and Principle 4.9 of the Schedule I thereto. Principle 4.9 requires an
individual upon request to be informed of the existence, use and disclosure of
her personal information and to be given access thereto. Subsection 8(3)
requires an organization to respond with due diligence and in any case within
30 days. Subsection 8(5) states that failure to respond within the time limit
is a deemed refusal to provide access.
[11]
Subsection
8(4) allowed that Rogers could extend the time limit
for a maximum of 30 days if meeting the time limit would unreasonably interfere
with its activities or if time was required to undertake consultations to
respond to the request. The time limit could be extended beyond that if necessary
to convert personal information into an alternative format. In either event, Rogers was required within 30 days
to send a notice of extension to Ms. Kollar advising her of the new time limit,
the reasons for extending the time limit, and of her right to make a complaint
to the Commissioner in respect of the extension. Rogers did not respect that requirement.
II. Discussion
[12]
Ms. Kollar
is suspicious that Rogers has not produced all her
personal information. However, irrespective of what was before the Office of
the Privacy Commissioner, I have been provided with three affidavits. The
affiants were not cross-examined and I am satisfied that all the documentation
on file has been provided.
[13]
Ms. Kollar
complains that some of the information with respect to salaries, bonuses and
commissions is sketchy. That may or may not be so, but I cannot order Rogers to create a document which
does not exist. All records required by the Canada Labour Code to be
maintained were maintained.
[14]
Ms. Kollar
would like a letter of apology. I cannot order someone to apologize.
[15]
Ms. Kollar
would like me to order that a notice, the details of which she did not specify,
be published in Rogers’ newsletter. In my view, the
notice published in the Human Resources newsletter was sufficient.
[16]
As to her
request that Rogers be ordered to change its
practices, there is nothing wrong with its practices. The problem was that
certain individuals did not observe those practices. There is no
reason to believe that the reminder by Rogers, following the Commissioner’s report, is not
sufficient.
[17]
Ms. Kollar
seeks damages, but made no argument whatsoever in support thereof. I see no
basis for such an award.
[18]
As for
costs, since there was no basis whatsoever for this application, in the normal
course I would have awarded costs to Rogers. However, for its part Rogers was quite aggressive in defence
of this application. In reality its defence was a cross-application in that it asked
the Court to hold that the Commissioner was wrong in finding that it was in
breach of the Act. Three affiants, who were not cross-examined, testified
as to the diligence exercised in gathering the requested information. One would
almost think that they worked night and day for more than six months. However,
Mr. Kollar’s original request was misconstrued. She did not simply ask for her
personnel file, but for all information. Rogers was wrong in providing a personnel file
and not providing information that had been kept in electronic form. Based on
the material before me, I am not satisfied that due diligence had been
exercised and certainly the 30-day delay was missed. Had it communicated with
her earlier, perhaps Ms. Kollar would not have thought she had been simply cast
to the wayside.
[19]
This is an
application which should not have been taken, and an application which should
not have been defended the way it was. In the circumstances it shall be
dismissed, each party paying its own costs.
ORDER
FOR REASONS GIVEN;
THIS COURT ORDERS that the application for judicial
review is dismissed, each party paying its own costs.
“Sean
Harrington”
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