Date:
20061130
Docket:
T-2126-05
Citation:
2006 FC 1455
[ENGLISH TRANSLATION]
BETWEEN:
JOHANNE
LÉPINE
Applicant
and
BANK OF NOVA SCOTIA
and
THE PRIVACY COMMISSIONER
OF CANADA
Respondents
REASONS FOR ORDER
PROTHONOTARY
MORNEAU
[1]
This
is a motion by the applicant to essentially seek a ruling in his favour
regarding several objections raised by the respondent, the Bank of Nova Scotia
(the Bank), during examinations on affidavit of the two affiants produced by
the Bank in its response on the merits to an application for judicial review
filed by the applicant in December 2005.
[2]
That
application for judicial review requires that this Court essentially examine
all issues for which a complaint was filed by the applicant in September 2004
with the Privacy Commissioner of Canada (the Commissioner).
[3]
The
wording of the applicant’s complaint with the Commissioner makes it hard to
understand. However, I think that the Commissioner summarized it well when, in
the beginning of her final report on November 2, 2005, she indicated the
following:
[translation]
In
your complaint received by our office on September 22, 2004, you allege that
one or more employees of the Bank of Nova Scotia obtained your personal
information regarding one or more of your accounts, without your permission. The
information obtained was then allegedly shared with a third party to launch
legal seizure proceedings.
[4]
In
the “Complaint and Investigation” section of her final report, the Commissioner
indicated as follows what she was able to determine from her investigation:
[translation]
Complaint and investigation
In
June 2004, the Bank conducted its investigation, which revealed that a manager
for the Quebec Region accessed your client profile eleven times on the
following dates: 2004-01-16, 2004-01-19, 2004-01-20, 2004-01-21, 2004-02-11. According
to the information received, a client’s profile contains information about all
dealings with the Bank: account numbers and balances, credit cards, mortgage,
etc.
In
doing so, the employee in question found that you had taken out a mortgage on a
property. The employee indicated several times during the investigation by the
Bank that he had not shared the information obtained with anyone but the Branch
Manager.
The
Bank advised us that disciplinary action had been taken against the employee at
fault.
[5]
In
the “Conclusions” section of her final report, the Commissioner summarized and
set out as follows the findings that led her to conclude that the applicant’s
complaint was well-founded under the Personal Information Protection and
Electronic Documents Act S.C. 2000, c. 5 (the Act):
[translation]
Conclusions
In
its response to our notice of complaint, the Bank confirmed that one of its
employees had accessed your profile without your consent. The employee indicated
that he had not shared the information obtained with any third parties, other
than the Branch Manager. Following its internal investigation, the Bank took
disciplinary action against the employee in question.
I
therefore find that your complaint is well-founded.
[6]
In
her application for judicial review filed in December 2005, the applicant, in
addition to a finding of damages, seems to be asking the Court to require that
the Bank change some of its institutional approaches.
[7]
For
example, the applicant is demanding that the Bank show greater respect in the
future for the Act and that it change its administrative and technical measures
regarding the use of the computer system used by its employees to view a client’s
profile (in this regard, see the first two remedies sought by the applicant in
her application for review).
[8]
In
response to that application for review, among other things, the Bank filed an
affidavit by Richard Groot, a Manager with the Bank for Eastern Canada, and an
affidavit by John Mair, a Senior Manager with the Bank for security and
investigations.
Analysis
[9]
It is recognized that a party conducting a
cross-examination on affidavit does not have the same latitude as they would
have in a cross-examination for discovery of the opposing party.
[10]
As noted in the following excerpts from Imperial
Chemical Industries Plc v. Apotex Inc. (1988), 23 C.P.R. (3d) 362, at page
366 and page 368, the questions asked in a cross-examination on affidavit must
be limited to the issue for which the affidavit was filed or to the credibility
of the affiant:
A party
cross-examining his opponent’s affidavit is not entitled to cover all matters
that may be said to be in issue in the action. Rather, the range of inquiry is
limited to the issue in respect of which the affidavit was filed or to the
credibility of the witness. Moreover, the question
must be a fair question in the sense of evincing a bona fide intention
directed to these ends, rather than being something in the nature of a fishing
expedition. See Weight Watchers Int’l Inc. v. Weight Watchers of Ontario
Ltd. (No. 2) (1972), 6 C.P.R. (2d) 196; Bally-Midway Mfg. Co. v. M.J.Z.
Electronics Ltd. (1983), 75 C.P.R. (2d) 160; and Boots Co. PLC v. Apotex
Inc. (1983), 76 C.P.R. (2d) 265.
(...)
(...) if we were
dealing with an examination for discovery, where the test of relevancy involves
a consideration of what might reasonably be supposed to contain information
likely to assist the party in advancing his own case and in damaging the case
of his adversary. The same broad standard of relevancy is not an appropriate
test of relevancy for cross-examination of an affidavit. In my opinion, the
learned prothonotary erred in law in treating these questions as being properly
relevant to the issue in respect of which the affidavit was filed or as going
to the credibility of the witness. I consider that they are unfair and
oppressive questions in the nature of a fishing expedition, and nothing more.
(Emphasis added.)
[11]
Objections
1 to 3 in the examination of Mr. Groot, reproduced in the applicant’s written
submissions, are all related to questions aimed directly or indirectly at
identifying the identity of the employee at fault who internally shared
personal information about the applicant.
[12]
Those
objections are upheld, as the identity of the employee at fault clearly exceeds
the framework and purposes of the affidavits by Mr. Groot and Mr. Mair. Moreover,
and without deciding here, as this issue could be examined by the Court on its
merits, the identity of that employee would likely not be personal information
about the applicant, but in fact personal information specific to that
employee.
[13]
These
reasons also support the fact that the applicant could not receive the full
text of Exhibit RG-1 from the affidavit by Mr. Groot, namely the disciplinary
letter sent to the employee at fault. I have examined the full text of Exhibit
RG-1 (which shall remain confidential at the Court for 30 days, and then
destroyed unless my decision is appealed) and I am satisfied that the portions
that were redacted were reasonably redacted to ensure that the identity of the
employee at fault would not be directly or indirectly disclosed.
[14]
Objections
6 to 8 of the same examination are related to questions that were answered
without prejudice. Under Rule 95 of the Federal Court Rules, they are
not to be addressed here and shall be the examined, as applicable, by the judge
on their merits.
[15]
Regarding
the examination of Mr. Mair, objections 1 and 2 are also related to questions
that were answered without prejudice. Under Rule 95, they are not to be
addressed here and shall be the examined, as applicable, by the judge on their
merits.
[16]
Objection
3 is based initially on a premise, i.e. the locking of the applicant’s account,
that was not established in a positive manner during the examination of Mr.
Mair. Therefore, the question covered by objection 3 is hypothetical in nature
and will therefore not receive a response.
[17]
The
application to examine the Bank’s Branch Manager to whom the employee at fault
allegedly transmitted the information about the applicant at the time is
dismissed, as that person did not file an affidavit, the three affidavits filed
by the Bank in response are largely enough, and the application is clearly
unnecessary and irrelevant to the application for judicial review.
[18]
As
noted by my colleague Tabib as follows in Autodata Ltd. v. Autodata
Solutions Co., [2004] F.C.J. No 1653, an application for judicial review is
governed by a fairly narrow framework:
19 However, a
cross-examination on affidavit is not a discovery, and an application is not an
action. An application is meant to proceed expeditiously, in summary fashion.
For that reason, discoveries are not contemplated in applications. Parties
cannot expect, nor demand, that the summary process mandated for applications
will permit them to test every detail of every statement made in affidavits or
in cross-examinations against any and all documents that may be in the opposing
party’s possession. If a party is not required to “accept” a witness’ bald assertion
in cross-examination, it is however limited in its endeavours to test that
assertion to the questions it may put to the witness and the witness’ answers
in the course of the cross-examination. To the extent documents exist that can
buttress or contradict the witness’ assertion, production may only be enforced
if they have been listed, or sufficiently identified, in a direction to attend
duly served pursuant to Rule 91(2)(c) (see Bruno v. Canada (Attorney General), [2003] F.C.J. 1604). I
reiterate: a cross-examination on an affidavit is the direct testimonial
evidence of the witness, not a discovery of the party.
[19]
Consequently,
remedies 1 to 4 set out in the applicant’s notice of motion are dismissed. The
applicant’s motion shall therefore be dismissed with costs.
[20]
The
timeline to be followed hereafter in this case shall be as follows:
1.
Applicant’s
Record to be served and filed on or before December 29, 2006;
2.
Respondent’s
Record to be served and filed on or before January 29, 2007;
3.
Applicant
to serve and file a Requisition for Hearing Date on or before February 19,
2007.
“Richard
Morneau”
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