Docket: A-218-14
Citation: 2014 FCA 292
Present: STRATAS
J.A.
|
Docket:A-218-14
|
|
BETWEEN:
|
|
DR. GÁBOR LUKÁCS
|
|
Applicant
|
|
and
|
|
CANADIAN TRANSPORTATION AGENCY
|
|
Respondent
|
REASONS
FOR ORDER
STRATAS
J.A.
A. Introduction
[1]
These reasons concern two motions:
•
The Privacy Commissioner of Canada moves to intervene in this application under Rule 109 of the Federal Courts Rules, SOR/98-106.
•
The applicant moves for dismissal of the Privacy
Commissioner’s motion to intervene because of his conduct during the
cross-examination of the Privacy Commissioner’s affiant.
[2]
In its November 14, 2014 Order, this Court
advised the parties that it would determine the applicant’s motion first, and
then it would determine the Privacy Commissioner’s motion to intervene.
[3]
All materials have been filed for the motions.
Both are ready to be determined. I have considered the motions in the sequence
mandated by the November 14, 2014 Order, though, as will be seen, there reasons
shall deal with them in reverse sequence. As will be seen, my reasoning
concerning the Privacy Commissioner’s motion to intervene affects my
determination of the applicant’s motion.
[4]
For the reasons given below, I allow the Privacy
Commissioner’s motion to intervene on terms. I dismiss the applicant’s motion
to dismiss and for other relief.
B. The
motion to intervene in this application
(1) The
nature of the application and the Privacy Act issues in it
[5]
In this application, the applicant challenges
the decision of the Canadian Transportation Agency not to disclose certain
documents to the applicant during the course of a proceeding. In its reasons,
the Agency relied in part upon the Privacy Act, R.S.C. 1985, c. P-21.
[6]
The applicant contests the Agency’s refusal to
disclose, submitting, among other things, that the Privacy Act does not
trump the open court principle.
[7]
In this motion, the Privacy Commissioner says he
will be able to assist the Court in its analysis of the Privacy Act and
how it applies to the issues in this application. In particular, the Privacy
Commissioner says that he can make a valuable contribution in the application
by addressing the Court on three issues concerning the Privacy Act.
•
Is personal information provided to the Agency
in the course of adjudicative proceedings “publicly
available information” within the meaning of subsection 69(2) of the Privacy
Act and, therefore, not subject to the limitations on disclosure set out in
section 8 of the Privacy Act?
•
Can the Agency disclose, without consent,
personal information provided to it in the course of adjudicative proceedings,
in accordance with one or more of the exceptions to the requirement of consent
set out in paragraphs 8(2)(a), 8(2)(b), or 8(2)(m) of the Privacy
Act?
•
In light of the open court principle, are the
limitations on disclosure imposed by the Privacy Act contrary to
subsection 2(b) of the Charter and not justified under section 1?
(2) The
test for intervention under Rule 109
[8]
The Privacy Commissioner submits that in
determining its motion for leave to intervene, the Court should follow the test
for intervention that was first set out in Rothmans, Benson & Hedges
Inc. v. Canada (Attorney General), [1990] 1 F.C. 90 (C.A.).
[9]
As the applicant notes, recently I suggested
that this test is outmoded, does not meet the exigencies of modern litigation,
and is, in some respects, illogical: Pictou Landing Band Council v. Canada (Attorney General), 2014 FCA 21, 456 N.R. 365 at paragraph 11. In Pictou,
I reformulated the test to better
implement some of the more central concerns that the Rothmans, Benson &
Hedges factors were meant to address and to meet modern litigation
challenges in the Federal Courts.
[10]
In Pictou, I held that the test to be
applied is as follows (at paragraph 11):
I. Has the proposed intervener complied with the specific procedural
requirements in Rule 109(2)? Is the evidence offered in support detailed and
well-particularized? If the answer to either of these questions is no, the
Court cannot adequately assess the remaining considerations and so it must deny
intervener status. If the answer to both of these questions is yes, the Court
can adequately assess the remaining considerations and assess whether, on
balance, intervener status should be granted.
II. Does the proposed
intervener have a genuine interest in the matter before the Court such that the
Court can be assured that the proposed intervener has the necessary knowledge,
skills and resources and will dedicate them to the matter before the Court?
III. In participating in
this appeal in the way it proposes, will the proposed intervener advance
different and valuable insights and perspectives that will actually further the
Court’s determination of the matter?
IV. Is it in the
interests of justice that intervention be permitted? For example, has the
matter assumed such a public, important and complex dimension that the Court
needs to be exposed to perspectives beyond those offered by the particular parties
before the Court? Has the proposed intervener been involved in earlier
proceedings in the matter?
V. Is the proposed intervention
inconsistent with the imperatives in Rule 3, namely securing “the just, most expeditious and least expensive
determination of every proceeding on its merits”? Are there terms that
should be attached to the intervention that would advance the imperatives in
Rule 3?
(3) Applying
the test for intervention
[11]
In my view, all of these factors are met in this
case.
[12]
The Privacy Commissioner has complied with the
Rules and this Court is fully empowered on this record to decide this motion.
[13]
I am satisfied that the Privacy Commissioner has
the necessary knowledge, skills and resources and will dedicate them to the
matter before the Court.
[14]
I am also satisfied that the Privacy
Commissioner will advance different and valuable insights and perspectives that
will actually further the Court’s determination of the matter.
[15]
The Privacy Commissioner can make a valuable
contribution to this Court’s consideration of the issues set out in paragraph
7, above.
[16]
In this case, the need for the Privacy
Commissioner’s contribution is heightened by the fact at present there is only
one party completely free to speak on the Privacy Act issues before the
Court, namely the applicant.
[17]
The only other party in the application, the Agency,
is also present. But the Agency is in an awkward position, not entirely free to
speak to the matter. In its reasons for decision, the Agency expressed its
views on the interpretation and application of the Privacy Act. On
those things, it is now functus officio. In this Court, where its
decision is under review, the Agency must be careful not to illegitimately
bootstrap its reasons by augmenting the Privacy Act analysis: United Brotherhood of Carpenters and
Joiners of America, Local 1386 v. Bransen Construction Ltd., 2002 NBCA 27, 39 Admin. L.R. (3d) 1 at
paragraphs 26 and 33. While a decision-maker can potentially appear in a
judicial review of its own decision (typically as an intervener), it can face
restrictions on the submissions it can make: Canada (Attorney
General) v. Quadrini, 2010 FCA 246.
[18]
In my view, the issues before the Court
concerning the Privacy Act, summarized above, are complex and deserve a
full, unrestricted airing by opposing parties. This strongly favours allowing
the Privacy Commissioner into this application as an intervener.
[19]
The next consideration is the public interest
dimension. I have nothing before me to suggest that this application has
assumed a significant public interest dimension. Further, the Privacy
Commissioner was not involved in the matter before the Agency. However, I note
that the public interest in decisions of this Court being respected will be
furthered by the involvement of the Privacy Commissioner. Determinations of
technical issues of interpretation of the Privacy Act should be grounded
on the best insights available and the Privacy Commissioner is a party with
much insight in this area. The Privacy Commissioner has repeatedly demonstrated
this in many high profile interventions in appellate courts, including the
Supreme Court of Canada.
[20]
The final consideration is whether the proposed
intervention is inconsistent with the imperatives in Rule 3, namely securing “the just, most expeditious and least expensive determination
of every proceeding on its merits.” In this case, while the Privacy
Commissioner could have moved earlier, he is not unduly disrupting the progress
of this matter. Further, the Privacy Commissioner is prepared to be bound by
the evidentiary record before this Court.
[21]
Overall, then, I will grant the Privacy
Commissioner’s motion.
[22]
Under Rule 109(3), I am empowered to give
directions concerning the intervention. Under Rule 53, I may make an order on
terms.
[23]
The Privacy Commissioner may file a memorandum
of fact and law on the issues of interpretation and application of the Privacy
Act, bearing in mind that this is a judicial review of the Agency’s
decision. The memorandum of fact and law may be no more than fifteen pages and
shall be filed no later than twenty days following the date of the Order
granting it leave to intervene.
[24]
As a term of granting the Privacy Commissioner
the right to intervene and file a memorandum, I shall allow the applicant to
file a memorandum of no more than fifteen pages only in response to the
intervener’s submissions. This memorandum shall be filed within twenty days of
the service of the Privacy Commissioner’s memorandum.
[25]
The Privacy Commissioner shall not add to the
evidentiary record. The Privacy Commissioner shall not seek costs or be awarded
costs.
[26]
The Privacy Commissioner shall have the right to
make oral submissions at the hearing of the application of no more than twenty
minutes. The panel hearing the application, of course, may amend this as it sees
fit.
C. The
applicant’s motion to dismiss the intervention motion
[27]
I now address the applicant’s motion seeking the
dismissal of the Privacy Commissioner’s motion to intervene or seeking other
lesser relief. The applicant bases his motion on Rule 97(d) (dismissal
of a motion for failure to answer a proper question on cross-examination). He
submits that the Privacy Commissioner improperly refused to permit its affiant
to answer questions on cross-examination.
[28]
The applicant asked questions aimed at finding out
the particular submissions the Commissioner was going to make at the hearing of
the application, including the extent to which, with particularity, those
submissions would be different from those of the Agency. In my view, while the
questions were directed at a relevant issue, they sought information that was
not material to the motion. The Court simply does not need the level of
particularity sought by the applicant in his questions.
[29]
Suppose for a moment that the Privacy
Commissioner’s affiant answered the applicant’s questions by saying that it had
not yet worked out with particularity its submissions. Would that affect my
analysis? Not at all. The factors overwhelmingly point to granting the Privacy
Commissioner the right to intervene.
[30]
Other questions posed by the applicant, such as
when and how the Privacy Commissioner became aware of this matter, are
irrelevant to the legal test I have applied.
D.
Miscellaneous
issues
[31]
The Registry seeks direction on whether the
respondent’s record in the application can be filed. The applicant objects on
the basis that it is late. In the circumstances proven in the record before me,
the lateness is fully explained and I exercise my discretion in favour of
granting an extension of time and permitting the record to be filed.
E.
Disposition of
the motions
[32]
Therefore, I grant the Privacy Commissioner’s
motion to intervene on terms and I dismiss the applicant’s motion. There shall
be no costs awarded on these motions.
"David Stratas"
Email this Content