Docket: T-125-13
Citation:
2015 FC 1420
Toronto, Ontario, December 24, 2015
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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E. W.
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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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JUDGMENT AND REASONS
I.
OVERVIEW
[1]
This is a judicial review of the December 12,
2012 report of findings [Report] by the Privacy Commissioner of Canada [the Commissioner].
The Report was issued in response to the Applicant’s privacy complaint against
what is now the Department of Human Resources and Skills Development Canada
[HRSDC, the Department], for collecting personal information contrary to section
5 of the Privacy Act, RSC 1985, c P-21 [the Act].
[2]
The Applicant argues that the Report contains
several errors, including that the Commissioner:
i.
did not conduct a thorough investigation;
ii.
did not provide the Applicant with the
opportunity to make submissions; and
iii.
was biased in the investigation of the
Applicant’s allegations.
[3]
The bulk of the errors raised by the Applicant
concern the manner in which the investigation was carried out, along with factual
items raised in the Report.
[4]
The parties have agreed to change the style of
cause as reflected above, for confidentiality purposes.
[5]
I conclude that that the judicial review
application should be dismissed, for two reasons. First, this Court is limited
to the extent it can engage in judicial review in the circumstances raised by
this case. Second, to the extent that a judicial review is possible, the Report
raises no reviewable error.
II.
BACKGROUND
[6]
On February 2, 2011, the Office of the Privacy
Commissioner of Canada [the OPC] received a complaint [Complaint] from the
Applicant against HRSDC (then known as Human Resources Development Canada
[HRDC]), alleging that it improperly collected her personal information from
her employer, McMaster University [McMaster], in connection with the
HRDC-sponsored Targeted Wage Subsidy Program [TWSP].
[7]
More specifically, the Applicant contends that
the private information was collected by the Quality and Continuous Improvement
Centre [QCIC], acting on behalf of the Department, when McMaster applied to
TWSP for funding for a custodial position that McMaster had offered her in 1999.
The Applicant maintains that the data was collected and provided without her
consent, thereby breaching her rights under the Act.
[8]
The information collected was on a QCIC Work
Experience Plan form (Application Record [AR], page 167), which was likely the
source of the information HRSDC collected, and contained the Applicant’s name,
address, telephone number and social insurance number.
[9]
After receiving the privacy complaint, the OPC
commenced a formal investigation, advising the Applicant and HRSDC of the
investigation via letters dated October 4, 2011.
[10]
The Applicant was also advised of her right to
submit additional information or comments to the OPC investigator [the Investigator]
assigned to the case, which the Applicant did, including engaging in various telephone
calls with the Investigator and submitting over 1,500 pages of further
documentation.
[11]
During the course of the investigation, the
Investigator also contacted HRSDC, including sending numerous emails following
up on the Department’s progress in gathering information relating to the
Complaint (namely locating any relevant files relating to the Applicant).
Ultimately, on September 21, 2012, HRSDC provided submissions, including the
fact that it was unsuccessful in finding any QCIC files pertaining to the Applicant
or her employment and that the file retention period had elapsed.
[12]
The Investigator followed up with HRSDC and
McMaster for materials relating to the TWSP. All that ultimately surfaced on
the specific issue under investigation was the contract between the Department
and McMaster but nothing regarding contracts between HRDC and QCIC and/or with the
Applicant specifically. Furthermore, the individuals that the Investigator
interviewed at both McMaster and HRSDC had no recollection of the events.
[13]
The Investigator considered all submissions and
documents, including the agreement between the Department and McMaster
regarding the wage subsidy pertaining to the Applicant. On December 12, 2012,
the OPC advised the Applicant of its findings by issuing the Report.
III.
THE REPORT
[14]
The OPC’s Report first confirmed that that the
Applicant’s name, telephone number, address, and social insurance number were
all collected by QCIC on behalf of the Department and meet the definition of
personal information under section 3 of the Act.
[15]
Having identified the information as personal, the
OPC considered whether QCIC’s collection contravened section 4 of the Act, which
requires that any collection of personal information by the government must
relate to the operation of the institution. In this case, the Department had collected
the information for the purposes of administering the TWSP program, which was
part of its proper mandate.
[16]
The OPC then turned to section 5 of the Act,
which states that personal information about an individual should not be
collected without the consent of that individual. On the evidence available,
the OPC found that it could not reach a finding with respect to whether the
Applicant’s personal information had been collected without her consent, because
12 years had passed since the alleged improper collection of the Applicant’s
personal information and the TWSP no longer existed.
IV.
ISSUES RAISED
[17]
The issues raised by the Applicant in this
judicial review are whether the OPC:
i.
erred in fact and/or law; or
ii.
violated the requirements of procedural
fairness.
[18]
Before examining these issues, I will begin my
analysis by looking at the ability this Court to intervene in the outcome of
this investigation by the OPC, and to review its conclusions.
V.
ANALYSIS
[19]
The Respondent is an independent officer of
Parliament who ranks as and has all the powers of a deputy head of a department.
She investigates complaints from individuals who allege that personal
information held by a government institution has been collected, used or
disclosed improperly (see sections 29 and 54 of the Act). When investigating,
the Commissioner must be impartial, independent and non-partisan (HJ Heinz
Co of Canada Ltd v Canada (Attorney General), 2006 SCC 13, paras 33-36).
[20]
The Respondent has broad discretion in carrying
out investigations: in other words, the Commissioner is a master of her own
proceedings (see sections 32-34 of the Act).
[21]
At the conclusion of an investigation, the
Respondent’s investigator prepares an investigation report. After considering
that report and the evidence in the file, the Respondent (or the Assistant
Privacy Commissioner, as her delegate), issues a final report. Its findings
and/or recommendations are not legally binding. Furthermore, the Act does not
provide the Commissioner with any order-making powers (section 35 of the Act).
[22]
The Respondent’s role is thus to resolve disputes
in an informal manner, effectively serving as an ombudsman and creating an
alternate, non-judicial avenue to address privacy concerns.
[23]
Section 41 of the Act allows any individual who has been refused access to personal information requested
under subsection 12(1), if a complaint has been made to the Privacy
Commissioner in respect of the refusal, to apply to this Court for a judicial
review within forty-five days after the time the results of an investigation of
the complaint by the Privacy Commissioner are
reported to the complainant. A section 41 application under the Act,
however, is not a judicial review of the Privacy Commissioner’s report of
findings: rather, it serves to challenge a refusal by a government institution
to provide an individual with access to his or her personal information that is
held by that government institution (see Keita v Canada (Minister of
Citizenship and Immigration), 2004 FC 626 at paras 20-22).
[24]
In other words, the respondent in a section 41
application should be the department that allegedly lost (or improperly used)
the information, not the Commissioner. As described by Justice Russell
in Love v Office of the Privacy Commissioner of Canada, 2014 FC
643, aff’d 2015 FCA 198, at para 82 [Love], “[i]t is simply a mechanism for a de novo review by the Court
of a refusal to provide access to personal information. It is brought as an
application naming the refusing party and not the OPC as the respondent, and
can only be pursued once the OPC has reported its recommendations”.
[25]
As the Respondent pointed out, to the extent the
Applicant’s grievance lies with the Department, which the OPC found to have
collected the Applicant’s TWSP-related personal information, but for which
evidence of consent for said collection could not be found, this application
for judicial review is misdirected.
[26]
An additional challenge for the Applicant in
this case is that for this Court to engage in a judicial review of the facts
and conclusions laid out in the Report, it must be a “decision
or order” pursuant to paragraph 18.1(4)(d) of the Federal Courts Act,
RSC 1985, c F-7. That paragraph states that “[t]he
Federal Court may grant relief … if it is satisfied that the federal board,
commission or other tribunal… based its decision or order on an
erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it” (emphasis added).
[27]
However, the OPC can only make non-binding
findings or recommendations (see Murdoch v Canada (Royal Canadian Mounted
Police), 2005 FC 420 at para 19; Morneault v Canada (Attorney General), [2001]
1 FCR 30 at para 41), and non-binding findings and recommendations that do not
affect the substantive rights of parties are generally not considered “decisions or orders” for the purposes of judicial
review under section 18.1 (see Democracy Watch v Conflict of Interest and
Ethics Commissioner, 2009 FCA 15 at paras 9-10, 12; Pieters v Canada
(Attorney General), 2007 FC 556 at para 68; Rothmans, Benson &
Hedges Inc v Canada (Minister of National Revenue), [1998] FCJ No 79 (FC)
at paras 28-29). In light of this, it is worth asking what scrutiny this Court
can actually apply.
[28]
Direction comes in Oleinik v Canada (Privacy
Commissioner), 2011 FC 1266 [Oleinik], where the Court was similarly
asked to review a report by the OPC. There, Justice Rennie distinguished “the investigation process”, which the Court can review,
from the “recommendations” of the OPC’s report, which
the Court cannot. He concluded that “[i]f the report
had material omissions, reached unreasonable conclusions, contained
unsustainable inferences, misconstrued the factual and legal context or evinced
a bias or pre-disposition on the part of the investigator, the Court could
intervene” (Oleinik at para 11). In Love at para 82, Justice Russell
held that “this Court’s remedial powers on
judicial review under s. 18.1 of the Federal Courts Act are sufficiently broad
to provide remedies if the OPC were to unlawfully refuse to investigate or
report its findings on a complaint, or were to conduct its investigation in an
unfair manner”.
[29]
This application for judicial review, then, can only focus on
those narrow grounds discussed by Justice Rennie in Oleinik and
Justice Russell in Love.
[30]
While the Applicant made several arguments as to
alleged errors in the Report, her claims fall into two categories, namely
errors of (i) procedural fairness and bias, and (ii) of fact-finding. I will
address each of these in turn.
A.
Allegations of Procedural Unfairness and Bias
[31]
The Respondent should have broad latitude in
determining how to run its own investigation, for various reasons, including,
as mentioned above, the fact that the OPC operates as an ombudsman, issues
non-binding reports, and, according to the Act, is master of its own
procedures. This reality militates against highly formal proceedings and
against a highly intrusive review by this Court of the OPC’s investigative
procedure.
[32]
Despite the Applicant’s submissions to the
contrary, I find that the OPC provided her with ample opportunity to make
submissions, an opportunity of which she availed herself readily, submitting
hundreds of pages of documentary evidence and entering into numerous exchanges
(telephone and otherwise) with both the Investigator and other OPC staff. There
is no evidence that the Applicant was thwarted in any of her efforts to present
her case. Similarly, there is no indication of bias, or even a reasonable
apprehension of bias, from anything on the record before me, based on the high
threshold that must be met to prove this serious allegation (Committee for
Justice and Liberty v Canada (National Energy Board), [1978] 1 S.C.R. 369 at p
394; R v S (RD), [1997] 3 S.C.R. 484; Arthur v Canada (Attorney General),
2001 FCA 223 at para 8).
B.
Allegations of Fact-Finding Errors
[33]
As described in Oleinik, this Court may review the
Report to determine whether it “had
material omissions, reached unreasonable conclusions, contained unsustainable
inferences, [or] misconstrued the factual and legal context” (para
11). However, “deference must
be given to administrative decision-makers to assess the probative value of
evidence and to decide to further investigate or not to further investigate
accordingly”, and judicial review will only be warranted “where unreasonable omissions are made, for example where an
investigator failed to investigate obviously crucial evidence” (see Slattery
v Canada (Human Rights Commission), [1994] 2 FCR 574, aff’d (1996) 205 NR
383 (FCA); Lafond v Canada (Attorney General), 2015 FC 735 at para 19).
[34]
Investigations and reasons provided, in other
words, need not be perfect, but rather must be reasonable (Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 at paras 16 and 18; Dunsmuir v New Brunswick, 2008 SCC 9 at para
47; Tahmourpour v Canada (Solicitor General), 2005 FCA 113 at
para 39).
[35]
The Applicant’s contention here is that the
Respondent unreasonably overlooked various key documents, including a wage
subsidy agreement and McMaster’s collective agreement of the time with a local
union. However, it is clear from the Report that the OPC considered the wage
subsidy agreement and did not find that it showed any privacy breach (AR, p 95).
As for the collective agreement, the Department was not a party to it nor is it
in any way related to the TWSP. These suggested gaps would not prove that the
Department obtained the Applicant’s consent to obtain the personal information
from McMaster. This is no proof that the Investigator failed to investigate
relevant evidence.
[36]
Based on the Investigators’ findings and
numerous unsuccessful efforts to obtain evidence from HRSDC, the Report’s
conclusions fall well within the possible range of outcomes, defensible in
respect of the facts and law. I further find the reasons to be justified,
transparent and intelligible.
VI.
CONCLUSION
[37]
Despite being sympathetic to the Applicant and
her best efforts to represent herself in difficult circumstances, I find no
reason to interfere with the Report or its findings.
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