Date:
20130115
Dockets: T-1587-11
T-1588-11
Citation:
2013 FC 31
Ottawa, Ontario,
January 15, 2013
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
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TREVOR KNISS
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Applicant
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and
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THE PRIVACY COMMISSIONER
OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a report of findings of the Office of
the Privacy Commissioner of Canada [the “OPC”]. The OPC issued the report on
July 12, 2011, after the Applicant, a self-represented litigant, had made a
complaint pursuant to section 11 of the Personal Information Protection and Electronic Documents Act, SC 2000, c 5 [“PIPEDA”] against
Telus Communications Company [“Telus”]. In a parallel proceeding, the Applicant
is applying for judicial review of another report of findings by the OPC,
issued on July 14, 2011 after he had filed a complaint against Shepell-FGI
[“Shepell”], an employee-assistance provider for Telus. These reasons will
address the two separate applications for judicial review as they are both
generally based on the same facts, as they raise the same issues. For the
following reasons, both judicial review applications are dismissed without
costs.
I. Facts
[2]
The
Applicant, an employee of Telus, was involved in a motor vehicle accident in
1991 that resulted in a chronic back condition. Following the accident, the Applicant
had to be assigned to a different task because of his health condition. He
assumed the position of contractor/inspector, which was abolished following a
strike.
[3]
Telus
made efforts to find the Applicant a suitable position, and it determined that
the position of access technician within the Telus Centre for Excellence could
be a suitable position for him. The Applicant was dissatisfied with the
proposed position as he believed that sitting at a desk would be detrimental to
his health. He preferred his former position that involved driving, an activity
that he knew would help to relieve his back pain.
[4]
On
October 2006, the Applicant commenced consultations with a Shepell counsellor,
following a referral for a functional capacity evaluation. After a few
sessions, it became apparent to the counsellor that the Applicant was
dissatisfied with his newly assigned position at Telus. In November 2006, the
Applicant went on disability leave.
[5]
On
April 16, 2007, the Applicant was advised to report to work at his new position
on April 30, 2007. On April 19, 2007, the Applicant contacted the Shepell
counsellor. The counsellor alleged that the Applicant was very angry about his
work assignment and that his anger escalated during the conversation. She was
not able to calm him down. Although the counsellor confirmed that no formal
threat was made by the Applicant, she was concerned that the Applicant might
represent a risk to himself or to others once in the workplace and therefore
contacted her supervisor.
[6]
The
counsellor, her manager and Shepell’s account executive manager on the Telus
account had a discussion on the Applicant and they decided to disclose the
counsellor’s concerns regarding the Applicant to Telus. The standard that they used
to decide if disclosure was appropriate was the following: “[i]s there a risk
of harm to self or others – with a possible escalation to cause harm as a
result of an incident?” Indeed, the Statement of Understanding signed on
October 4, 2006 by the Applicant includes an exception to the confidentiality
of his discussions with a counsellor when a risk to his own person or to others
is involved. The information was therefore disclosed to Telus on April 20, 2007,
and given to a small group of Telus employees that included the Applicant’s
former supervisors.
[7]
The
Applicant, however, claims that he never signed any consent form authorizing
the disclosure of personal information and that he never made any threats.
[8]
On
April 23, 2007, a meeting was held at Telus to make a Threat Assessment in
order to determine if the Applicant’s return to work would involve a risk.
Telus decided to ask the Applicant to attend a meeting with Telus Corporate
Security. The Applicant refused to attend the meeting, and therefore Telus
asked the Applicant by letter on April 30, 2007, to attend an appointment on
May 15, 2007, with a psychiatrist. In the letter there was no mention of the
fact that a risk assessment would be conducted. On May 7, 2007, the Applicant
signed a consent form with respect to the appointment with the psychiatrist and
two consent forms authorizing Telus and the psychiatrist to exchange
information regarding the Applicant. The Applicant did not attend the
appointment with the psychiatrist. Information was also disclosed to his family
doctor. The Applicant’s employment was then terminated in July 2007. The
Applicant brought the issue to his Union and pursued a grievance under the Canada
Labour Code, RSC 1985, c L-2 with respect to his
dismissal. The grievance was dismissed in a decision dated July 23, 2009. The
arbitrator concluded that the Applicant was properly
dismissed because he refused to cooperate with Telus when attempts were made to
accommodate him. At the hearing, the Applicant made it known that he had filed
for judicial review of his labor arbitration award.
[9]
In
June 2008, the Applicant filed a complaint with the Office of the Information and Privacy Commissioner of Alberta against both Telus and Shepell. In this
complaint, he alleges that the disclosure of personal information by Shepell to
Telus occurred without his consent and that the information communicated
alleged that he had made threats, when in fact he had not. This complaint was
referred to the OPC. The Applicant alleges that Telus did not verify the
truthfulness of the information and that it illegally disclosed such
information to several employees, his family doctor and a psychiatrist without
his consent. The Privacy Commissioner considered both complaints unfounded and
therefore dismissed them. The two reports of findings dated July 2011 are the
decisions subject to the present judicial review proceedings.
II. Office
of the Privacy Commissioner of Canada’s Findings
[10]
As
for Shepell’s alleged unlawful disclosure of information, the Privacy
Commissioner applied Principle 4.3 of Schedule 1 of the PIPEDA when she made
her determination. The conclusion of the Privacy Commissioner is that the disclosure
of information regarding the Applicant by Shepell to Telus was made in
accordance with the Statement of Understanding.
[11]
As
for Telus’ alleged unlawful disclosure of information to Telus employees and
medical practitioners, the Privacy Commissioner concluded that the complaint is
unfounded. First, Telus’ disclosure of the Applicant’s personal information was
not unlawful as an individual who accepts employment is deemed to have
consented to the collection, use and disclosure of personal information for
management purposes. Moreover, the exchange of information between Telus and
the family doctor was a result of an ongoing relationship between the doctor
and the Telus Health Department which began in November 2006. This occurred as
a result of an authorization form signed by the Applicant. Disclosure of
personal information was made to the psychiatrist pursuant to a consent form
signed on May 7, 2007, which was valid until the Applicant's withdrawal of his
consent.
III. Applicant’s
Submissions
[12]
The
Applicant claims that he never signed any consent form authorizing Shepell to
disclose personal information, and that he never made any threats. He therefore
submits that Shepell unlawfully disclosed personal information to Telus, who
then unlawfully disclosed his personal information to employees and medical
practitioners. The Applicant asks this Court to order that the matter be sent
for re-determination by the OPC. He alleges that the investigations were
incomplete, and unfair since the information received from both Telus and
Shepell was not communicated to him, and that the labour arbitrator's decision
was illegally disclosed to the Privacy Commissioner by Telus.
IV. Respondent’s
Submissions
[13]
The
Respondent submits that the Applicant had an adequate alternative remedy under
section 14 of the PIPEDA, which the Applicant ought to have pursued. A judicial
review should not replace this legislative remedy provided for by the PIPEDA.
The Respondent also draws the Court’s attention to the fact that the Applicant had
filed considerable new evidence that was not part of the OPC’s certified
record. Thus, if the Court decides to exercise its discretion
to hear this judicial review application, the Respondent
requests an Order ruling the new evidence inadmissible.
[14]
The
Respondent also submits that the Applicant cannot seek judicial review of the
two reports by the OPC because they do not consist of a final decision that can
be reviewed under section 18.1 of the Federal
Courts Act, RSC 1985, c F-7.
[15]
Finally, the Respondent submits that if the
Court decides to hear the present judicial review application, all of the Privacy
Commissioner’s findings should be considered reasonable.
V. Issues
[16]
I
agree with counsel for the Respondent that the issue arising from this application
is the following:
Does the
Applicant have an adequate alternative remedy such that this Court ought to decline to entertain this application for
judicial review?
[17]
Should
the Court decide to hear the application for judicial review on its merits, the
Court will have to examine two additional issues:
1. Is all of
the evidence submitted by the Applicant admissible?
2. Has the
Applicant established any grounds for judicial review of the Privacy
Commissioner’s
reports of findings?
VI. The
Standard of Review
[18]
If
this Court finds that it is necessary to proceed with the judicial review of
the reports, the standard of review is reasonableness. Indeed, the reports
issued by the OPC turn on factual findings and the application of the PIPEDA to
facts (Dunsmuir v
New Brunswick,
2008 SCC 9 at para 51, [2008] 1 S.C.R. 190). Questions of
facts should also be reviewed under the standard of reasonableness. The issues
raised by the Applicant are ambiguous as he was not able to explain clearly
what factual concerns he has in the present case, a point that will be further
developed below. It may be that the Applicant raised questions of fact which
could also involve questions of natural justice or procedural fairness, both
principles being applicable to the OPC. If that is the case, then the applicable
standard is correctness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339).
VII.
Relevant
Legislation
[19]
In
order to facilitate the reading of this decision, the relevant legislation is
included as an Annex to the present decision (as Annex A).
VIII. Analysis
A. A brief explanation of the role of the
Privacy Commissioner when investigating
pursuant to the PIPEDA
[20]
As
sections 11, 12 and 13 of the PIPEDA show, an individual has a broad right to
complain to the OPC against any organization that allegedly breached its
obligations under the Act.
[21]
The
Privacy Commissioner is appointed by Parliament as an independent Officer of
Parliament pursuant to section 53 of the Privacy Act, RCS 1985, c P-21
[“Privacy Act”].
[22]
In
her capacity under the PIPEDA, the Privacy Commissioner conducts “[…]
impartial, independent and non-partisan investigations” when dealing with
complaints. She is an “[…] administrative investigator not an adjudicator” (see
Canada (Privacy Commissioner) v Blood Tribe Department of Health,
2008 SCC 44, at para 20, [2008] 2 S.C.R. 574).
[23]
The
Privacy Commissioner has extensive investigative powers which require her to
keep all information received during the course of an investigation
confidential (see sections 12.1 and 20 of the PIPEDA). Her reports and findings
may include recommendations that are not binding. The OPC may ask to be
informed of the actions taken by the organization, if any, or to be given an
explanation why no such action will follow (see sections 13(1)(a) and 13(1)(c)
of the PIPEDA, Englander v Telus Communications Inc., 2004 FCA 387 at
para 71, 247
DLR (4th) 275 [Englander]).
[24]
It
is important to note that the Supreme Court, in Lavigne v Canada (Office of
the Commissioner of Official Languages), 2002 SCC 53 at paras 37-38, [2002] 2 S.C.R. 773, concluded that the role of the Privacy
Commissioner is comparable to that of an “ombudsman,” which requires her to
follow “[...] an approach that distinguishes [her] from a Court,” and that her
mission “[…] is to resolve tension in an informal manner.”
[25]
Where
a party to an investigation by the OPC is not satisfied with the report, its
findings or its recommendations, if any, he may apply to the Federal Court in
respect of any matter that may arise from the complaint made or from the report
issued and that relates to subject matters referred to in schedule 1 of the
PIPEDA (see section 14(1) of the PIPEDA). The Respondent, in such a proceeding,
is the organization against whom the complaint was made but the OPC may seek
leave to intervene or act on behalf of the complainant if consent is given (see
section 15 of the PIPEDA).
[26]
As
explained above, the Privacy Commissioner does not have the power to grant
binding remedies. The Federal Court has the jurisdiction to grant various
remedies, which include awarding damages or issuing compliance orders (see
section 16 of the PIPEDA). The process is to be completed without delay and in
a summary way unless the Court considers it inappropriate. Hearings may be,
when appropriate, held ex parte, in camera to avoid disclosure of
information protected by the Act (see section 17 of the PIPEDA).
[27]
It
is also important to note that when the OPC issues a report, she must inform
the parties involved in the investigation that section 14 of the PIPEDA
provides for a recourse before the Federal Court (see section 13(1)(d) of the
PIPEDA). Such notice was given to the Applicant when the reports were issued.
[28]
A
recourse initiated under section 14 of the PIPEDA is not a judicial review of the
Privacy Commissioner's report. It is a new application, heard de novo,
and the burden is on the Applicant to present evidence of a breach of the
Act. In order for a complainant to benefit from this recourse, the OPC needs to
have received a complaint that was investigated and that resulted in the
issuance of a report. (See Englander, supra at para 47 and Eastmond
v Canadian Pacific Railway, 2004 FC 852 at para 118, 16 Admin LR (4th)
275).
B. Does the
Applicant have an adequate alternative remedy?
[29]
The
Applicant has filed for judicial review of the two reports of the OPC on
September 27, 2011. It is well recognized that a judicial review is
discretionary. Indeed, prerogative writs, which have been encompassed by
section 18.1 of the Federal Courts Act, are discretionary. Thus, a
judicial review is not only discretionary, it is also an extraordinary
procedure (see Canadian Pacific Ltd v Matsqui Indian Band, [1995] 1 SCR
3 at para 30, 122 DLR (4th) 129 [Matsqui Indian
Band]).
[30]
When
considering whether or not it should enter into a judicial review process or
alternatively, that the Applicant should proceed or should have proceeded
through the legislative recourse provided for by the Act, this Court must
consider certain factors such as the convenience of the alternative remedy, the
nature of the error and the nature of the appellate body (i.e., its
investigatory, decision-making and remedial capacities). (See Matsqui Indian
Band, supra, at para 37.)
[31]
The
legislator elaborated a clear process that needs to be followed when dealing
with complaints pursuant to the PIPEDA. The process includes an investigative component
with the Privacy Commissioner and a judicial one with the Federal Court. The
judicial proceedings can be initiated only after the OPC has investigated and
issued a report. Unlike the judicial remedies that are available to a
complainant who pursues a recourse under section 14 of the PIPEDA, the report
of the Privacy Commissioner is not binding on the parties involved.
[32]
Another determinative factor is the requirement that
notice of judicial remedial recourse must be communicated to the parties by the
Privacy Commissioner. By including such an obligation, the legislator intended
that applicants pursue this recourse first.
[33]
Moreover,
the jurisdiction of the Federal Court over the recourse includes any matter
related to the complaint made or any matters related to the Privacy
Commissioner's report which are related to topics included in Schedule 1 of the
PIPEDA.
[34]
The
judicial recourse provided for by the Act is more exhaustive than the judicial
review procedure. Indeed, the scope of the recourse under section 14 of the
PIPEDA is broader than that of a judicial review, which is limited to the
decision made and the documentation contained in the certified record, and which
is conducted according to specific standards of review. The judicial recourse
established by the legislator in the PIPEDA is more appropriate to deal with
all matters raised in a complaint than a judicial review application.
[35]
In
addition, the powers of the Federal Court when dealing with the recourse
provided by section 14 of the PIPEDA are not comparable to a judicial review
process. Recourse under section 14 is a de novo procedure. The burden is
on the complainant to file evidence to show a breach of the PIPEDA, exhibits
can be filed, witnesses can testify, parties have a right to cross-examination
and submissions are made in writing and orally. The evidence is to be assessed
on a balance of probabilities. It is well-known that a judicial review
proceeding serves a very different purpose, which is to review the legality of
an administrative decision or action.
[36]
Furthermore,
as a result of the judicial process, the Applicant may be granted remedies such
as damages or the issuance of a compliance Order directed at the organization
that committed a breach of the Act. In a judicial review of an administrative
decision, a Court may quash it and return the matter to the Privacy
Commissioner for further investigation in accordance with the reasons given. The
intent of the legislator is for a complainant to first exhaust his recourse
under section 14 of the PIPEDA, which might result in the award of damages or
other beneficial remedies for the Applicant unavailable to a Court conducting a
judicial review.
[37]
As
noted above, in his notices of application and written submissions the
Applicant raised general allegations of errors that have been committed by the
Privacy Commissioner. He namely submitted that errors of fact were made, that
the investigation was not fair and that the OPC reports relied on fraudulent or
perjured evidence.
[38]
This
Court did the best it could to gather the oral and written submissions made by
the self-represented Applicant. The Applicant submits that he did not utter
threats to Shepell’s counsellor, that Shepell had no justification to disclose
information to Telus and that Telus should not have informed some of its
supervisors, his family doctor and the psychiatrist. The Statement of Understanding,
authorization form and consent form signed by the Applicant did not permit such
disclosure. In addition, he also suggests that he had a right to know the
content of the investigation, which includes what Shepell and Telus were alleging
and that the arbitration decision unfavourable to him should not have been
communicated to the OPC by Telus because of its confidential nature.
[39]
These
are all matters that could and would have been dealt with if a judicial
recourse related to the reports had been filed with the Federal Court under
section 14 of the PIPEDA. All of these matters are based on facts, and a judge
of this Court would have been able to deal with all matters subject to the
evidence presented by the parties. Furthermore, any legal matter concerning the
Statement of Understanding, the authorization form and the consent form could
have been dealt with. Also, any concern that the Applicant may have concerning
the communication of the arbitration decision could and would have been
addressed.
[40]
The
delay of 45 days to file an application with the Federal Court under subsection
14(2) of the PIPEDA has now expired and the Applicant will not have another
venue to present his complaints related to the two reports. If there is to be
no judicial review of the reports, can that be an argument to support an
exercise of my discretion in favour of hearing these judicial review
applications? Since the legislator clearly intended that complainants first
exhaust their recourse under subsection 14(2) of the PIPEDA to the exclusion of
other judicial recourses, the intent of the legislator would therefore be
neutralized if I exercised my discretion in favour of hearing these judicial
review applications. This is not the approach that should be followed by this Court.
The Applicant made a decision to proceed with these judicial review
applications. He must therefore assume the consequences of his decision. (See Canadian
Human Rights Commission v Frank D. Jones and Air Canada, [1982] 1 FC 738 at
para 19, 128 DLR (3d) 535.) The legislative judicial recourse provided by the
PIPEDA is an alternative remedy that was adequate in the present circumstances.
(See
Sandiford
v Canada, 2007 FC 225; Lazar v Canada (Attorney General), 1999
CanLII 7969 at para 18.)
[41]
The
fact that the Applicant is a self-represented litigant is not a reason for
interpreting the law differently or to be open to certain equitable
accommodations. It would be unfair to other parties represented by counsel to
do so.
[42]
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.
IX. Additional
Comments
[43]
Considering
the second issue in light of my conclusion made above, there is no need to
proceed any further. If there had been matters related to a breach of the
principle of natural justice, a breach of fairness or an allegation of
reasonable apprehension of bias, any of which could not be remedied by recourse
to section 14 of the PIPEDA, a judicial review may have been appropriate. This
was not the case in the present files. Indeed, the OPC conducted its
investigation in accordance with the PIPEDA. Having said that, I would still
like to add the following comments.
[44]
For
the purposes of the judicial review, the Applicant filed a substantial amount
of new evidence that the Privacy Commissioner did not have during the
investigation. Approximately 10 exhibits filed by the Applicant contained new
documentation. Out of the 53 paragraphs of the written submissions of the
Applicant, at least 14 paragraphs dealt with new evidence that was not before
the Privacy Commissioner.
[45]
It
is a well-known principle that in judicial review, the certified record of the
tribunal from which the decision originates contains the evidence to be relied
upon by the parties and by the Court. Only on an exceptional basis will new
evidence be filed if a request is made to the Court and the Court grants
permission. Such permission may be granted when allegations of bias or issues
of procedural fairness are raised. In this case, no request was made but, more
importantly, the matters raised by the Applicant were all to a great extent
related to the evidence as presented by the parties. Initially, it seemed as if
the Applicant did raise general issues of bias and procedural fairness as he
used the exact wording of section 18.1 of the Federal Courts Act, but
upon careful examination, the issues raised by the Applicant were related to
the evidence filed and the investigation process. No specific issues related to
bias or procedural fairness were convincingly presented, and all matters as
raised could have been dealt with before the Federal Court under section 14 of
the PIPEDA.
[46]
As
a result, the Applicant should have been aware that such new evidence cannot be
part of the judicial review proceedings. It was therefore found to be
inadmissible. The Applicant was told during the hearing that the filing of new
evidence, which consists of all of the documents that were not part of the OPC
investigation files, would not be permitted.
[47]
The
Court has also looked at the reports of the OPC in light of the Applicant’s
criticisms and found them to be factual, understandable and dispositive of all
the issues raised by the complaints as filed. The reports conclude that the
Applicant did not utter threats as he argued, but also that the Shepell
counsellor felt, following the conversation with the Applicant, that he was so
upset that he might have represented a risk to himself or to others in the
workplace. She was therefore under the obligation to inform her supervisor, who
then decided to inform Telus, the employer. The counsellor also relied upon the
Statement of Understanding in her decision to proceed in this way. The reports
also found that Telus was right to inform some supervisors of the events
involving the Applicant in order to assess the situation. Furthermore, the OPC
found that it was, in the circumstances, justifiable to inform the Applicant's
own family doctor and an independent psychiatrist who was mandated to evaluate
the Applicant. Based on past collaboration between Telus Health Department and
the family doctor, and on the signed authorization, it was reasonable to expect
that such information would be exchanged. Regarding the disclosure to the
psychiatrist, the reports note that a consent form had been signed and that the
information was released prior to the withdrawal of consent by the Applicant.
[48]
Finally,
my last comment is for the Applicant. Having seen and heard the Applicant for
more than a few hours, I was able to have extensive exchanges with him about
the issues and his own challenges in life. In 1991, the Applicant was involved
in a major car accident. A chronic back condition resulted from the accident,
affecting his functional working abilities. His condition had a major impact on
his working life and also probably on his personal life. In 2005, Telus, his
employer, through a process of re-evaluating positions following a strike,
decided to eliminate the position of contractor/inspector which the Applicant
occupied. In order to accommodate the Applicant, his employer identified Access
Technician with the Telus Center for Excellence as a suitable position. The
Applicant felt that he could not accept it since it was a desk job that he
thought would be detrimental to his health given his back condition. From that
time on, his life was never to be the same. The Applicant is trying desperately
to redo the past and go back in time. It is not possible. The Applicant is
trying to identify a guilty party responsible for his present condition. As the
processes followed with the OPC (and the labour arbitrator subject to the
result of judicial proceedings) show, the Applicant’s situation was not
improperly dealt with. Telus and Shepell were concerned about his health
condition and the disclosure of medical information to reliable individuals was
done in his own interest. His health situation was of concern to all. There is
no guilty party to be found to explain his situation in this proceeding. This
judicial review is the result of the Applicant’s misunderstanding of his
supervisor’s and Shepell counsellor’s steps taken in trying to assist him and
of his former employer Telus (in the other judicial review). Without wanting to
impose anything on the Applicant, it is humbly suggested that some acceptance
of the past be made so that what remains of life can be approached under a
better light.
[49]
The
Respondent is not seeking costs and thus none will be awarded.
JUDGMENT
FOR
ALL THESE REASONS, THIS COURT ORDERS AND ADJUGES THAT:
1. The
applications for judicial review in files T-1587-11 and T-1588-11 are dismissed
because an adequate recourse was available to the Applicant under section 14 of
the Personal
Information Protection and Electronic Documents Act, SC 2000,
c 5.
2. No
costs are to be awarded.
“Simon Noël”
_________________________________
Judge
ANNEX A
|
Personal
Information Protection and Electronic Documents Act
SC
2000, c 5
Filing
of Complaints
Contravention
11. (1) An
individual may file with the Commissioner a written complaint against an
organization for contravening a provision of Division 1 or for not following
a recommendation set out in Schedule 1.
Commissioner
may initiate complaint
(2) If
the Commissioner is satisfied that there are reasonable grounds to
investigate a matter under this Part, the Commissioner may initiate a
complaint in respect of the matter.
[…]
Notice
(4) The
Commissioner shall give notice of a complaint to the organization against
which the complaint was made.
Investigations
of Complaints
Examination
of complaint by Commissioner
12. (1) The
Commissioner shall conduct an investigation in respect of a complaint, unless
the Commissioner is of the opinion that
(a) the
complainant ought first to exhaust grievance or review procedures otherwise
reasonably available;
(b) the
complaint could more appropriately be dealt with, initially or completely, by
means of a procedure provided for under the laws of Canada, other than this
Part, or the laws of a province; or
(c) the
complaint was not filed within a reasonable period after the day on which the
subject matter of the complaint arose.
(2) [Not
in force]
Notification
(3) The
Commissioner shall notify the complainant and the organization that the
Commissioner will not investigate the complaint or any act alleged in the
complaint and give reasons.
Compelling
reasons
(4) The
Commissioner may reconsider a decision not to investigate under subsection
(1), if the Commissioner is satisfied that the complainant has established
that there are compelling reasons to investigate.
Powers
of Commissioner
12.1 (1) In
the conduct of an investigation of a complaint, the Commissioner 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;
(b) administer
oaths;
(c) receive
and accept any evidence and other information, whether on oath, by affidavit
or otherwise, that the Commissioner sees fit, whether or not it is or would
be admissible in a court of law;
(d) at
any reasonable time, enter any premises, other than a dwelling-house,
occupied by an organization on satisfying any security requirements of the
organization relating to the premises;
(e) converse
in private with any person in any premises entered under paragraph (d) and
otherwise carry out in those premises any inquiries that the Commissioner
sees fit; and
(f) examine
or obtain copies of or extracts from records found in any premises entered
under paragraph (d) that contain any matter relevant to the investigation.
Dispute
resolution mechanisms
(2) The
Commissioner may attempt to resolve complaints by means of dispute
resolution mechanisms such as mediation and conciliation.
Delegation
(3) The
Commissioner may delegate any of the powers set out in subsection (1) or (2).
[…]
Commissioner’s
Report
Contents
13. (1) The
Commissioner shall, within one year after the day on which a complaint is
filed or is initiated by the Commissioner, prepare a report that contains
(a) the
Commissioner’s findings and recommendations;
(b) any
settlement that was reached by the parties;
(c) if
appropriate, a request that the organization give the Commissioner, within a
specified time, notice of any action taken or proposed to be taken to
implement the recommendations contained in the report or reasons why no such
action has been or is proposed to be taken; and
(d) the
recourse, if any, that is available under section 14.
(2) [Repealed,
2010, c. 23, s. 84]
Report
to parties
(3) The
report shall be sent to the complainant and the organization without delay.
Application
14. (1) A
complainant may, after receiving the Commissioner’s report or being notified
under subsection 12.2(3) that the investigation of the complaint has been
discontinued, 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.
Time
of application
(2) A
complainant must make an application within 45 days after the report or notification
is sent or within any further time that the Court may, either before or after
the expiry of those 45 days, allow.
For
greater certainty
(3) For
greater certainty, subsections (1) and (2) apply in the same manner to
complaints referred to in subsection 11(2) as to complaints referred to in
subsection 11(1).
Commissioner
may apply or appear
15. The
Commissioner may, in respect of a complaint that the Commissioner did not
initiate,
(a) apply
to the Court, within the time limited by section 14, for a hearing in respect
of any matter described in that section, if the Commissioner has the consent
of the complainant;
(b) appear
before the Court on behalf of any complainant who has applied for a hearing
under section 14; or
(c) with
leave of the Court, appear as a party to any hearing applied for under
section 14.
Remedies
16. The
Court may, in addition to any other remedies it may give,
(a) order
an organization to correct its practices in order to comply with sections
5 to 10;
(b) order
an organization to publish a notice of any action taken or proposed to be
taken to correct its practices, whether or not ordered to correct them under
paragraph (a); and
(c) award
damages to the complainant, including damages for any humiliation that the
complainant has suffered.
Summary
hearings
17. (1) An
application made under section 14 or 15 shall be heard and determined without
delay and in a summary way unless the Court considers it inappropriate to do
so.
Precautions
(2) In
any proceedings arising from an application made under section 14 or 15, the
Court shall take every reasonable precaution, including, when appropriate,
receiving representations ex parte and conducting hearings in camera, to
avoid the disclosure by the Court or any person of any information or other
material that the organization would be authorized to refuse to disclose if
it were requested under clause 4.9 of Schedule 1.
[…]
General
Confidentiality
20. (1) Subject to subsections (2) to (6), 12(3), 12.2(3),
13(3), 19(1), 23(3) and 23.1(1) and section 25, the Commissioner or any
person acting on behalf or under the direction of the Commissioner shall
not disclose any information that comes to their knowledge as a result of the
performance or exercise of any of the Commissioner’s duties or powers under
this Part.
Public interest
(2) The
Commissioner may make public any information relating to the personal
information management practices of an organization if the Commissioner
considers that it is in the public interest to do so.
Disclosure of necessary
information
(3) The Commissioner may disclose, or
may authorize any person acting on behalf or under the direction of the
Commissioner to disclose, information that in the Commissioner’s opinion is
necessary to
(a) conduct an investigation or audit under this Part;
or
(b) establish the grounds for findings and
recommendations contained in any report under this Part.
Disclosure in the course
of proceedings
(4) The Commissioner may disclose, or
may authorize any person acting on behalf or under the direction of the
Commissioner to disclose, information in the course of
(a) a
prosecution for an offence under section 28;
(b) a prosecution for an offence under section 132 of
the Criminal Code
(perjury) in respect of a statement made under this Part;
(c) a hearing before the Court under this Part; or
(d) an appeal from a decision of the Court.
Disclosure of offence
authorized
(5) The
Commissioner may disclose to the Attorney General of Canada or of a province,
as the case may be, information relating to the commission of an offence
against any law of Canada or a province on the part of an officer or employee
of an organization if, in the Commissioner’s opinion, there is evidence of an
offence.
[My
emphasis.]
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Loi
sur la protection des renseignements personnels et les documents
électroniques, LC
2000, ch 5
Dépôt
des plaintes
Violation
11. (1) Tout
intéressé peut déposer auprès du commissaire une plainte contre une
organisation qui contrevient à l’une des dispositions de la section 1 ou qui
omet de mettre en œuvre une recommandation énoncée dans l’annexe 1.
Plaintes
émanant du commissaire
(2) Le
commissaire peut lui-même prendre l’initiative d’une plainte s’il a des
motifs raisonnables de croire qu’une enquête devrait être menée sur une
question relative à l’application de la présente partie.
[…]
Avis
(4) Le
commissaire donne avis de la plainte à l’organisation visée par celle-ci.
Examen
des plaintes
Examen
des plaintes par le commissaire
12. (1) Le
commissaire procède à l’examen de toute plainte dont il est saisi à moins
qu’il estime celle-ci irrecevable pour un des motifs suivants :
a) le
plaignant devrait d’abord épuiser les recours internes ou les procédures
d’appel ou de règlement des griefs qui lui sont normalement ouverts;
b) la
plainte pourrait avantageusement être instruite, dans un premier temps ou à
toutes les étapes, selon des procédures prévues par le droit fédéral - à
l’exception de la présente partie - ou le droit provincial;
c) la
plainte n’a pas été déposée dans un délai raisonnable après que son objet a
pris naissance.
(2) [Non
en vigueur]
Avis
aux parties
(3) S’il
décide de ne pas procéder à l’examen de la plainte ou de tout acte allégué
dans celle-ci, le commissaire avise le plaignant et l’organisation de sa
décision et des motifs qui la justifient.
Raisons
impérieuses
(4) Le
commissaire peut réexaminer sa décision de ne pas examiner la plainte aux
termes du paragraphe (1) si le plaignant le convainc qu’il existe des raisons
impérieuses pour ce faire.
Pouvoirs
du commissaire
12.1 (1) Le
commissaire peut, dans le cadre de l’examen des plaintes :
a) assigner
et contraindre des témoins à comparaître devant lui, à déposer verbalement ou
par écrit sous la foi du serment et à produire les documents ou pièces qu’il
juge nécessaires pour examiner la plainte dont il est saisi, de la même façon
et dans la même mesure qu’une cour supérieure d’archives;
b) faire
prêter serment;
c) recevoir
les éléments de preuve ou les renseignements - fournis notamment par
déclaration verbale ou écrite sous serment - qu’il estime indiqués,
indépendamment de leur admissibilité devant les tribunaux;
d) visiter,
à toute heure convenable, tout local - autre qu’une maison d’habitation -
occupé par l’organisation, à condition de satisfaire aux normes de sécurité
établies par elle pour ce local;
e) s’entretenir
en privé avec toute personne se trouvant dans le local visé à l’alinéa d) et
y mener les enquêtes qu’il estime nécessaires;
f) examiner
ou se faire remettre des copies ou des extraits des documents contenant des
éléments utiles à l’examen de la plainte et trouvés dans le local visé à
l’alinéa d).
Mode
de règlement des différends
(2) Il
peut tenter de parvenir au règlement de la plainte en ayant recours à un
mode de règlement des différends, notamment la médiation et la conciliation.
Délégation
(3) Il
peut déléguer les pouvoirs que les paragraphes (1) et (2) lui confèrent.
[…]
Rapport
du commissaire
Contenu
13. (1) Dans
l’année suivant, selon le cas, la date du dépôt de la plainte ou celle où il
en a pris l’initiative, le commissaire dresse un rapport où :
a) il
présente ses conclusions et recommandations;
b) il
fait état de tout règlement intervenu entre les parties;
c) il
demande, s’il y a lieu, à l’organisation de lui donner avis, dans un délai
déterminé, soit des mesures prises ou envisagées pour la mise en oeuvre de
ses recommandations, soit des motifs invoqués pour ne pas y donner suite;
d) mentionne,
s’il y a lieu, l’existence du recours prévu à l’article 14.
(2) [Abrogé,
2010, ch. 23, art. 84]
Transmission
aux parties
(3) Le
rapport est transmis sans délai au plaignant et à l’organisation.
Demande
14. (1) Après
avoir reçu le rapport du commissaire ou l’avis l’informant de la fin de
l’examen de la plainte au titre du paragraphe 12.2(3), 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 qu’ils sont modifiés ou clarifiés par la section
1, aux paragraphes 5(3) ou 8(6) ou (7) ou à l’article 10.
Délai
(2) La
demande est faite dans les quarante-cinq jours suivant la transmission du
rapport ou de l’avis ou dans le délai supérieur que la Cour autorise avant ou
après l’expiration des quarante-cinq jours.
Précision
(3) Il
est entendu que les paragraphes (1) et (2) s’appliquent de la même façon aux
plaintes visées au paragraphe 11(2) qu’à celles visées au paragraphe 11(1).
Exercice
du recours par le commissaire
15. S’agissant
d’une plainte dont il n’a pas pris l’initiative, le commissaire a qualité
pour :
a) demander
lui-même, dans le délai prévu à l’article 14, l’audition de toute question
visée à cet article, avec le consentement du plaignant;
b) comparaître
devant la Cour au nom du plaignant qui a demandé l’audition de la question;
c) comparaître,
avec l’autorisation de la Cour, comme partie à la procédure.
Réparations
16. La
Cour peut, en sus de toute autre réparation qu’elle accorde :
a) ordonner
à l’organisation de revoir ses pratiques de façon à se conformer aux
articles 5 à 10;
b) lui
ordonner de publier un avis énonçant les mesures prises ou envisagées
pour corriger ses pratiques, que ces dernières aient ou non fait l’objet
d’une ordonnance visée à l’alinéa a);
c) accorder
au plaignant des dommages-intérêts, notamment en réparation de l’humiliation
subie.
Procédure
sommaire
17. (1) Le
recours prévu aux articles 14 ou 15 est entendu et jugé sans délai et selon
une procédure sommaire, à moins que la Cour ne l’estime contre-indiqué.
Précautions
à prendre
(2) À
l’occasion des procédures relatives au recours prévu aux articles 14 ou 15,
la Cour prend toutes les précautions possibles, notamment, si c’est indiqué,
par la tenue d’audiences à huis clos et l’audition d’arguments en l’absence
d’une partie, pour éviter que ne soient divulgués, de par son propre fait ou
celui de quiconque, des renseignements qui justifient un refus de
communication de renseignements personnels demandés en vertu de l’article 4.9
de l’annexe 1.
[…]
Dispositions générales
Secret
20. (1) Sous réserve des paragraphes (2) à (6), 12(3),
12.2(3), 13(3), 19(1), 23(3) et 23.1(1) et de l’article 25, le commissaire et
les personnes agissant en son nom ou sous son autorité sont tenus au
secret en ce qui concerne les renseignements dont ils prennent connaissance
par suite de l’exercice des attributions que la présente partie confère au
commissaire.
Intérêt public
(2) Le commissaire peut rendre publique toute information
relative aux pratiques d’une organisation en matière de gestion des
renseignements personnels, s’il estime que cela est dans l’intérêt public.
Communication de
renseignements nécessaire
(3) Il
peut s communiquer - ou autoriser les personnes agissant en son nom
ou sous son autorité à communiquer - les renseignements qui, à son avis, sont
nécessaires pour :
a) examiner une
plainte ou procéder à une vérification en vertu de la présente partie;
b) motiver les
conclusions et recommandations contenues dans les rapports prévus par la
présente partie.
Communication
dans le cadre de certaines procédures
(4) Il peut également communiquer - ou
autoriser les personnes agissant en son nom ou sous son autorité à
communiquer - des renseignements soit dans le cadre des procédures intentées
pour l’infraction visée à l’article 28 ou pour l’infraction visée à l’article
132 du Code criminel
(parjure) se rapportant à une déclaration faite en vertu de la présente
partie, soit lors d’une audience de la Cour prévue par cette partie ou lors
de l’appel de la décision rendue par celle-ci.
Dénonciation autorisée
(5) Dans les cas où, à son avis, il existe des éléments de
preuve touchant la perpétration d’infractions au droit fédéral ou provincial
par un cadre ou employé d’une organisation, le commissaire peut faire part au
procureur général du Canada ou d’une province, selon le cas, des
renseignements qu’il détient à cet égard.
[Je souligne.]
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