Date: 20100420
Docket: T-143-09
Citation: 2010 FC 429
Ottawa, Ontario, April 20,
2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
PRIVACY COMMISSIONER
OF CANADA
Applicant
and
AIR
CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
An
incident occurred on an Air Canada Jazz flight which led to protracted
correspondence between the passenger and Air Canada, and
ultimately to his demand that Air Canada produce his personal information file.
It refused on the grounds of privilege. The passenger complained to the Privacy
Commissioner, but Air Canada maintained the same position with her. She
has now applied to this Court for a hearing in accordance with Section 15 of the
Personal Information Protection and Electronic Documents Act, invariably
referred to by its acronym PIPEDA. Apart from other remedies, she asks for a
ruling on the validity of Air Canada’s privilege assertion.
[2]
The
purpose of PIPEDA is to establish rules to govern the collection, use and
disclosure of personal information. It applies to businesses subject to federal
jurisdiction, such as airlines.
[3]
An
individual, without any need for justification, has the right to access his or
her personal information held by such an organization and, if appropriate, call
for the rectification of any errors contained therein.
[4]
There
are some exceptions, one being if “…the information is protected by solicitor-client
privilege” as declared in Section 9(3)(a), or by “solicitor-client or
litigation privilege”, the words used in Section 4.9 of the Schedule of Principles.
AIR CANADA JAZZ FLIGHT
AC8193
[5]
During
the Air Canada Jazz flight from Kamloops to Vancouver on 26 May
2005, Mr. Juergen Dankwort and another passenger were observed by the flight
attendant, Mr. Rene Wong, to be consuming beer which had not been served to
them by him. Consumption of alcohol on board that has not been served by the
aircraft’s operator is prohibited by the Canadian Aviation Regulations,
SOR/96-433. Mr. Wong drew this fact to the attention of the two
passengers. One surrendered his beer and that was the end of the matter.
Although Mr. Dankwort also surrendered his beer, a discussion, or rather discussions,
ensued. Both Mr. Dankwort and Mr. Wong agree that extreme rudeness was
displayed. Each, however, claims that he was excessively polite, and blames the
other. Each threatened to file a complaint, and indeed each did.
[6]
Mr.
Wong informed the pilot and, as a result, on arrival in Vancouver Mr. Dankwort
was not only met by an Air Canada representative, but also by several RCMP
officers. After some discussion, he was sent on his way. He was not detained
and no charges were ever laid. Air Canada did not put him on a
“no-fly” list and has not shared or made use of the information contained in
its file.
[7]
The
very next day Mr. Dankwort wrote to the president of Air Canada to complain
about Mr. Wong’s “unwarranted and aggressive behaviour.” Upon landing he was
questioned by RCMP officers “in a most unpleasant manner in full view of all deplaning
passengers.” Mr. Wong’s “conduct was unprofessional and hostile. He abused his
authority. I was subjected to verbal intimidation by him and falsely accused of
causing a disturbance.” The letter ended with this ominous remark:
I am holding Air Canada responsible for the wrongful actions of
your employee that caused me great personal distress, including embarrassment,
police intervention and delay. I await your reply on how you propose to redress
this matter…
[8]
Over
the next 22 months, Air Canada rebuffed Mr. Dankwort’s complaint
including his threat of a lawsuit. It supported Mr. Wong’s version of events,
which it said were backed up by an independent witness, another passenger.
[9]
While
all this was going on, Mr. Dankwort also complained to the Canadian
Transportation Agency that Mr. Wong, who to his surprise was supported by Air Canada, had made a
false allegation against him. The CTA declined jurisdiction on the basis that
the complaint described was a level of service issue which fell within the
purview of airline management.
THE PRIVACY COMMISSIONER
[10]
The
Privacy Commissioner became involved once Mr. Dankwort drew to her attention
that Air Canada was refusing to make its file on him available for his
inspection. When faced with the same refusal based on privilege, she called
upon Air Canada to file an
affidavit which would identify in considerable detail the documents over which
privilege was claimed and which would clearly set out why privilege was being
asserted. Air Canada refused and
added that it had already provided her with adequate particulars in their
exchange of correspondence.
[11]
The
Privacy Commissioner prepared a preliminary report bemoaning Air Canada’s position.
These preliminary reports sometime have the effect of breaking an impasse.
However, that did not work in this case. In her final report, she mentioned
that she had recommended in her preliminary report that Air Canada disclose the
documents Mr. Dankwort requested and concluded: “I am disappointed with the
actions of Air Canada in addressing the issue of the requested
documents. Accordingly, the complaint is well-founded. We will be pursuing the
matter in accordance with our authorities under the Act.”
[12]
In
her Notice of Application to this Court, the Privacy Commissioner seeks:
a. A declaration
that she was entitled to require Air Canada to provide affidavit
evidence in support of its claim of privilege;
b. An order
confirming or denying Air Canada’s claim that the documents are subject to
privilege;
c. An order
requiring Air Canada to provide Mr.
Dankwort with access to any and all documents unlawfully withheld from him; and
d. An award of
damages in Mr. Dankwort’s favour.
THE REQUISITE AFFIDAVIT
[13]
In
response to the Privacy Commissioner’s application to this Court, Air Canada has filed
affidavit evidence, on which its representatives were cross-examined, and has
delivered the documents over which it asserts privilege to the Court, under
seal.
[14]
Although
it was held by the Supreme Court in Canada (Privacy Commissioner) v. Blood
Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574, that the
Privacy Commissioner has no jurisdiction in her administration of PIPEDA to
rule on an assertion of privilege and therefore is not entitled to inspect
documents over which privilege is claimed, Section 12 gives her broad powers
and in the conduct of an investigation she may compel persons to appear and
give oral or written evidence on oath. It follows, she submits, that she was
entitled to require Air Canada to justify its assertion of privilege by
way of a detailed affidavit.
[15]
I
do not agree. Although the burden rests with Air Canada to justify
its allegation of privilege, it is this Court, and not the Privacy
Commissioner, who is the decision maker. Air Canada could have
refused without giving any particulars whatsoever. The Privacy Commissioner
would then have had to seek one of the many avenues of redress to this Court
which are available to her. In such a case, even if it turned out that Air
Canada’s refusal was not capricious, and that the documents were privileged, Air
Canada might face
serious cost consequences for unnecessarily taking up the Court’s time.
[16]
In
this case, Air Canada, in my opinion, provided sufficient
particulars. Consider the decision of Madam Justice Sharlow, speaking for the Federal
Court of Appeal in Blank v. Canada (Minister of the
Environment), 2001 FCA 374, 281 N.R. 388 at paragraph 17:
Claims
of solicitor-client privilege are typically dealt with as they have been in
this case, with the party challenging the privilege being given particulars about
the documents rather than access to the documents themselves. The result is
that the documents are reviewed in detail only by the Court. In the first
instance, the challenging party is compelled as a matter of necessity to rely
on the judge or, as in this case, commence an appeal without being able to
specify what errors might have been committed. The appellate court is then
forced to look over the shoulder of the judge at first instance and reach its
own conclusion as to whether the privilege applies. No other procedure has been
devised that can ensure a reasonable review of the solicitor-client privilege
claim without destroying it. There is no reason to depart from that practice in
this case.
[17]
Of
course, the Privacy Commissioner had the right to inform Air Canada that if it
did not persuade her that its assertion was well founded, she would come to
this Court, as indeed she has. However, since she could not make a decision, it
follows that she could not stipulate the steps Air Canada had to take
to satisfy her that the documents were truly privileged. If she were the
decision maker, she may well have been entitled to stipulate what Air Canada
had to do. Rule 223 of the Federal Courts Rules calls for an affidavit
of documents, including a statement of the grounds for which each claim of
privilege is claimed in respect of a document. However, in that case it is the
Tribunal itself, i.e. the Federal Court, which determines whether the
assertion of privilege is justified.
THE PRIVILEGED DOCUMENTS
[18]
Air
Canada asserts
privilege over five documents:
a. The initial report
and a follow-up report by the flight attendant, Mr. Wong;
b. A report from
the customer service representative who met the plane on arrival at Vancouver;
c. A report from
the captain of the aircraft; and, finally,
d. A statement
from a passenger who witnessed the incident.
[19]
There
are two underlying themes. One is that an airline must be extremely attentive
to safety issues. This theme is emphasized in the many instruction manuals
which covered the flight in question. Having characterized Mr. Dankwort’s
behaviour as disruptive, Mr. Wong was obliged to prepare a report. The other
theme is that any large organization which serves the public is bound to
receive complaints. The merits of the complaint are not before me. The fact
remains that an incident which arises during a flight could result in either
the airline instituting various proceedings against the passenger, or vice
versa.
[20]
Mr.
Wong prepared his first report on the “Air Canada Jazz Incident Report” form. This
form identifies 24 potential types of incidents including turbulence, equipment
malfunction and hijacking. One of the 24 is “disruptive or impaired passenger.”
That is the type of incident Mr. Wong circled.
[21]
The
form calls for a brief description of what happened, and of the action taken. It
only provides a few lines for this purpose. Mr. Wong set out his version of
events and significantly, also gave the name of a passenger who witnessed the
incident. These “disruptive or impaired passenger” reports are not sent
directly to Air Canada’s legal department, but are passed on to it as
a matter of course.
[22]
The
second report was prepared by the Air Canada Customer Service Manager who met Mr. Dankwort
at the gate upon the plane’s arrival in Vancouver. There has
been some confusion with respect to this document. At a later stage, Air Canada’s legal
department requested a report from him, but all he did was retransmit an
earlier email which was prepared on the day of the incident. It is titled
“Shift Overview.” Within the context of email exchanges it could well be a
privileged document, but it was first created as a stand-alone document before
the legal department became involved. These two reports were prepared before Mr.
Dankwort’s letter of May 27, 2005, addressed to Montey Brewer, CEO of Air
Canada, at its headquarters in Montréal, with copy to Air Canada Customer Solutions
in Calgary.
[23]
There
are a number of departments within Air Canada which use
the word “Customer” as part of their title. Air Canada’s summary of
events is set out in an affidavit of Kim Swan, a paralegal. She refers to
certain individuals as being a customer relations manager, the Customer
Solutions Department and Consumer Advocacy Department. The only distinction I
consider relevant is between the various “Customer” departments on the one hand
and the “Legal Department” on the other.
[24]
On
receipt of the letter at Air Canada’s head office, the customer relations
manager in Montréal involved Me Louise-Hélène Sénécal, assistant general counsel,
litigation. The copy of Mr. Dankwort’s letter addressed to Air Canada Customer Relations
was received in Calgary on June 3, 2005.
[25]
Over
the next several days, Ms. Swan, a paralegal in Calgary, became
involved with the Customer Advocacy Department, the whole under Me Sénécal’s
supervision.
[26]
Mr.
Dankwort’s letter was acknowledged and an investigation was promised.
[27]
The
day-to-day investigation was overseen by Ms. Swan. The internal correspondence
attached to her confidential affidavit shows that Air Canada Jazz was treating
the matter as a threatened lawsuit. Customer Advocacy requested a report from
the captain of the flight, as well as a more detailed report from Mr. Wong, for
furtherance to Ms. Swan. Mr. Wong’s more detailed report was prepared on June
14 and the captain’s Aeronautical Event Report was prepared on June 16. On July
5, Customer Advocacy wrote to Mr. Dankwort and stated that Mr. Wong had, in
their opinion, acted appropriately. That letter had been approved by Me Sénécal
prior to its issuance.
[28]
Mr.
Dankwort wrote back to take issue with Air Canada’s position.
He said:
You have apparently decided to accept
your employee’s story of these events, diverting from the complaint I made
about Mr. Wong’s conduct and his false report –a most serious act, given the
imperatives of air safety and the responsibilities of an airline attendant.
[29]
The
passenger who witnessed the incident was then contacted and voluntarily gave a
statement which entirely supported Mr. Wong’s version.
WHAT IS LEGAL PRIVILEGE?
[30]
One
may always keep one’s thoughts to oneself. However, if they are put to writing,
even in a note to file, which one considers personal, or if one corresponds
with another verbally or in writing, with all of its modern electronic
applications, the information, and if contained in a document, the document
itself, may be required to be produced.
[31]
The
law recognizes that certain communications and documents ought to remain
confidential. Sections 37 through 39 of the Canada Evidence Act deal
with public interest, national interest, and confidences of the Queen’s Privy
Council. One need only look at the index of Hubbard, Magotiaux and Duncan, The
Law of Privilege in Canada, (Aurora: Canada Law Book, 2006), to get an idea
of the scope of what the law considers should remain confidential, such as
Parliamentary privilege, spousal privilege, religious communications,
doctor/patient communications and, in the criminal law context, the privilege
against self-incrimination. The case before me deals with solicitor/client and
litigation privilege.
[32]
In
Blank v. Canada (Minister of Justice), 2006 SCC
39, [2006] 2 S.C.R. 319, the Court distinguished solicitor/client privilege
from litigation privilege, within the context of the Access to Information
Act. A prime distinction between solicitor/client privilege, sometimes called
legal advice privilege, and litigation privilege is that the latter, to use the
words of Mr. Justice Fish, “…expires with the litigation of which it was born”
(para. 8). Solicitor/client privilege, which has been part of our law for
centuries, “…recognizes that the justice system depends for its vitality on
full, free and frank communication within those who need legal advice and those
who are best able to provide it… The resulting confidential relation between
solicitor and client is a necessary and essential condition of the effective
administration of justice.” (para. 26). This privilege does not lose its status
with the passage of time.
[33]
However,
litigation privilege, which comes to an end with the passage of time, is somewhat
broader in scope in that it may cover communications between a solicitor and
third parties. “Its object is to ensure the efficacy of the adversarial process
and not to promote the solicitor-client relationship…” (para. 27).
[34]
Blank dealt with
litigation privilege which came to an end, absent closely related proceedings,
upon the termination of the litigation that gave rise to the privilege. In the
case before me, the witness statement from another passenger on the flight
would only be covered by litigation privilege. The other four documents at
issue may be covered by both forms of privilege.
[35]
Legal
privilege existed long before the modern concept of supposed transparency as
set out in PIPEDA, the Access to Information Act and the Privacy Act.
Solicitor/client privilege and litigation privilege form a cornerstone of our
daily life under the Rule of Law. The necessity to safeguard privilege has been
emphasized time and time again by the Supreme Court. In addition to Blank,
above, recent instances include Smith v. Jones, [1999] 1 S.C.R. 455; Pritchard
v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809; Foster
Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des
déchets (SIGED) Inc., 2004 SCC 18, [2004] 1 S.C.R. 456; Maranda v.
Richer, 2003 SCC 67, [2003] 3 S.C.R. 193; and Lavallée, Rackel &
Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209.
[36]
There
is also a fundamental distinction to be drawn between “information” and “documentation”.
Although PIPEDA speaks of “information”, it is clear that the information
possessed by an organization concerning an individual must be in a retrievable format.
Thus, we are speaking of a “record”.
[37]
The
distinction in my mind between a “privileged document” and “privileged
information” was formed, at least as it applies in this Court, by President
Jackett in Susan Hosiery Ltd. v. Canada (Minister of National Revenue – MNR),
[1969] 2 Ex.C.R. 27. He addressed the solicitor/client privilege and what he
called the “lawyer’s brief” rule. He said at paragraph 11:
What is privileged is the communications or working papers that
came into existence by reason of the desire to, obtain a legal opinion or legal
assistance in the one case and the materials created for the lawyer's brief in
the other case. The facts or documents that happen to be reflected in such
communications or materials are not privileged from discovery if, otherwise,
the party would be bound to give discovery of them.
ARE THE DOCUMENTS PRIVILEGED?
[38]
Turning
now to the first document, the “Air Canada Jazz Incident Report” prepared by
Mr. Wong the day of the flight, the Privacy Commissioner, who has not seen
the documents, submits from context that it cannot be privileged as it was
prepared in the ordinary course of business. To be privileged, the
communication must have been produced with litigation in mind, produced for the
dominant purpose of receiving legal advice or as an aid to the conduct of
litigation and the prospect of litigation must be reasonable (Commercial
Union Assurance Co. PLC v. M.T. Fishing Co. (1999), 162 F.T.R. 74, aff’d (1999),
244 N.R. 397 (F.C.A.)).
[39]
When
Mr. Wong prepared his report, he had some reason to believe that Mr. Dankwort
had transgressed the Canadian Aviation Regulations. Sections 602.04(1) and
(2) thereof provide :
|
602.04 (1) In this
section, “intoxicating liquor” means a beverage that contains more than 2.5
per cent proof spirits.
(2) No person shall consume on board an aircraft an intoxicating
liquor unless the intoxicating liquor
(a) has been served to that person by the operator of the aircraft;
or
(b) where no flight attendant is on board, has been provided by the
operator of the aircraft.
|
602.04 (1) Pour l'application du présent
article, « boissons enivrantes » s'entend des boissons ayant une teneur en
alcool de plus de 2,5 pour cent.
(2) Il est interdit à toute personne de consommer des boissons
enivrantes à bord d'un aéronef à moins :
a) qu'elles ne lui aient été servies par l'utilisateur de l'aéronef;
b) qu'elles ne lui aient été fournies par l'utilisateur de
l'aéronef lorsqu'il n'y a pas d'agent de bord à bord.
|
[40]
Sections 7.3(3) and (4) of the Aeronautics Act stipulate
that a person who has contravened any regulation under the Act is guilty of an
offence punishable on summary conviction and, in the case of an individual,
subject to a fine not exceeding $5,000.
[41]
It
is significant that he gave the name of a witness, as the manuals make it
perfectly clear that if Air Canada were minded to encourage the authorities
to lay a charge, it would want to know if a non-employee witnessed the
incident.
[42]
Mr.
Wong also reasonably anticipated that a complaint would be filed against him.
The Air Canada Jazz Initial Training Manual provides that the law branch is
available to provide advice and support to employees who are called as
witnesses. If a civil suit or criminal charges are laid against an employee,
Air Canada Jazz fully assumes the employee’s defence. “In the event you are
involved in a disruptive passenger incident, remember you are not on your own.
There is support available.”
[43]
I
am satisfied that the dominant purpose of Mr. Wong’s initial report was to set
out facts which would allow Air Canada’s legal department to advise the company
as to whether it should pursue Mr. Dankwort, and to allow the legal department,
on the other hand, to assess potential liability on the part of Mr. Wong and
his employer. This report is subject to both solicitor/client and litigation
privileges.
[44]
The
second report, that of the Air Canada representative who met the flight in
Vancouver, Mark Shankland, is somewhat different. His was a routine end of
shift synopsis prepared after both he and the RCMP officers had spoken with Mr.
Dankwort. It was clear that no charges were going to be laid against Mr.
Dankwort who exhibited no animosity toward Mr. Shankland. Although a report was
requested some time later on behalf of the legal department, that does not
change the characterization of his report, the dominant purpose of which was
not solicitor/client or litigation privilege. It should be disclosed. I
appreciate, however, that had it only been created at the time it had been
requested on behalf of the legal department, it would have been privileged. I
find no bad faith on Air Canada’s part.
[45]
Mr.
Wong’s second report and the captain’s report were clearly generated in
response to Mr. Dankwort’s claim. Air Canada’s response was
coordinated by its legal department. The two documents are covered by both
solicitor/client and litigation privilege.
[46]
The
last document, the statement from a passenger who witnessed the exchanges between
Mr. Dankwort and Mr. Wong, is only subject to litigation privilege. The Privacy
Commissioner argues that the two-year statute of limitations in British Columbia has come and
gone and so that in accordance with Blank, such privilege as there may
have been has expired. She also points out, however, that some balance must be
exercised in order to protect the witness’ privacy rights.
[47]
Given
that Mr. Dankwort’s position was that he was defamed by Mr. Wong, and given
that Mr. Wong’s version of events is fully supported by this witness, perhaps
he would be inclined to sue her. It is too simplistic to state that there is a
two-year limitation. Another issue is when that two-year period began to run.
As regards the passenger, what she said has not yet been “discovered” by Mr.
Dankwort. Consequently, I am satisfied that the statement is still covered by
litigation privilege.
THE PRIVACY
COMMISSIONER’S SUBMISSIONS
[48]
The
cases cited by the Commissioner circumscribe the limits of privilege. Apart
from the dominant purpose test, a document which otherwise would not be
privileged does not gain the patina of privilege by routing it through a
lawyer. Likewise, not all communications with in-house counsel, be it within a
private organization or the government, are necessarily privileged.
[49]
The
Commissioner emphasizes that Ms. Swan, Air Canada’s paralegal
who did much of the day-to-day work in this matter, was not licensed. The fact
remains that she was working under the overall supervision of Me Sénécal. As stated
by the Supreme Court in Descôteaux v. Mierzwinski¸ [1982] 1 S.C.R. 860
at 873:
Seeking
advice from a legal adviser includes consulting those who assist him
professionally (for example, his secretary or articling student) and who have
as such had access to the communications made by the client for the purpose of
obtaining legal advice.
[50]
The
Commissioner made two other submissions which require mention. One was that for
a document to be privileged, there must have been be a reasonable prospect when
it was created which would allow a reasonable person possessed of all pertinent
information to conclude that it was unlikely that the claim would be resolved
without litigation. Thus, an investigation report may not be privileged. The
other is that by referring to its investigation in its correspondence with Mr.
Dankwort, Air Canada waived
privilege.
[51]
Hamalainen
(Committee of) v. Sippola, [1992] 2 W.W.R. 132, 62 B.C.L.R. (2d) 254, a
decision of the British Columbia Court of Appeal, is cited as authority for the
first. This was an insurance case. The Court held that in determining a claim
of privilege with respect to a document, there were two factual determinations
to be made. One was whether litigation was a reasonable prospect at the time it
was prepared. If so, what was the dominant purpose for its creation? The
documents in question satisfy that test.
[52]
In
support of the second proposition, reference was made to the decision of this Court
in Mid-West Quilting Co. v. Canada, 2007 FC 735. However that case is but
one of many which have held that solicitor/client privilege has been impliedly
waived if considerations of fairness and consistency so require. The issue
before Mr. Justice O’Reilly was whether an extension of time to bring an action
should be granted under Manitoba’s Limitation of
Actions Act. To succeed, Mid-West was required to establish that not more
than one year had elapsed between “‘the date on which it first knew, or, in all
the circumstances of the case, ought to have known, of all material facts of a
decisive character upon which the action is based’, and ‘the date on which the
application is made to the Court for leave.’”
[53]
In
its supporting affidavit, the affiant said that he had sought and obtained
legal advice. Thus, Mid-West put in issue the legal advice it received. It
could not very well take the position that it had received legal advice which
did not put it on notice of a possible time bar and at the same time refuse to
produce that advice. In this case, Air Canada made no
mention whatsoever of its legal advice. It simply gave its understanding of
facts which had been obtained as a result of an investigation, an investigation
which was carried out in reasonable contemplation of litigation.
[54]
Had
Mr. Dankwort sued Air Canada, he would not have been entitled to the
production of the documents in issue. Nevertheless, he would have been entitled
on an examination to discovery to obtain all of Air Canada’s knowledge,
information and belief as to the facts in issue, as per Susan Hosiery,
above. However he could not have made use of that information other than in
those court proceedings, as otherwise he would have run the risk of being found
in contempt of court (NM Paterson & Sons Ltd. v. St. Lawrence Seaway
Management Corp., 2004 FCA 210, 322 N.R. 83).
[55]
I
see nothing in PIPEDA which would require Air Canada to disclose discoverable
facts which are contained in a privileged document, other than in court
proceedings. These facts were put at the disposal of its solicitors for legal
advice. Indeed, Blank, above, is instructive. The Access to
Information Act also denies production of privileged documents. That being
said, section 49 provides that the Court may, nevertheless, order the
production of the record or part thereof. The Motions Judge, in a judgment
reported at [2000] F.C.J. No. 1147 (QL), ordered that some facts be severed
from privileged documents and be made available to the applicant. The Crown did
not appeal. In Mr. Blank’s appeal, Madam Justice Sharlow went out of her way to
state at paragraph 22:
The
instances in which partial disclosure was ordered fall into two categories. In
one category, disclosure was ordered of certain statements in the communication
that were purely factual. It is arguable that those factual statements should
not have been ordered disclosed because in each case they are inextricably
linked to the legal issue under discussion that they ought to be treated as
part of the privileged communication. To that extent, there may have been
over-disclosure of some privileged documents. However, as the Minister has not
cross-appealed, the order of the Judge will not be varied on that account.
DAMAGES
[56]
The
Privacy Commissioner submitted that if Air Canada wrongfully
withheld documents from Mr. Dankwort, then the Court, in its discretion, should
award damages. She suggested a sum of $5,000 to $10,000.
[57]
Mr.
Dankwort, in his affidavit in support of the application, states he wants to
“correct Air Canada’s records.”
In other words, he wants Air Canada to acknowledge that his version is correct
and Mr. Wong’s and the witness’ versions are wrong. I asked counsel how this
issue has been resolved in other cases in which there are dramatically opposed
versions of an event. Counsel informed me the Commissioner often suggests that
the competing version be inserted in the file. Mr. Dankwort has already
succeeded in that respect. This is consistent with Principle 4.9.6. When a
challenge is not resolved to the satisfaction of the individual, the substance
of the unresolved challenge shall be recorded by the organization. No doubt Air
Canada will add
these reasons for order and order to its file.
[58]
Mr.
Dankwort expresses concern that airlines, such as Air Canada, have extraordinary
power in that they may decide who may or may not fly with them, and he fears
that at any time he might be detained.
[59]
In
this regard, Carmen Baggaley, a senior policy and research analysis with the
Office of the Privacy Commissioner, filed an affidavit setting out particulars
of various programs implemented by the Canadian Border Service Agency and
Transport Canada which deal
with “no-fly” programs. Air Canada moved prior to the hearing to have this
affidavit struck. Prothonotary Morneau rightly decided that this motion was
best left to the judge hearing the application on the merits.
[60]
While
I do not think that the affidavit adds much, and while some of it is
argumentative and speculative, it does indicate that there could have been a
basis for Mr. Dankwort’s concerns. I see no need to strike it.
[61]
Apart
from one document, which was withheld with no evidence of bad faith, Mr.
Dankwort is not entitled to see the documents in question. Furthermore, Air
Canada has preferred to let the matter be, notwithstanding that Mr. Dankwort
was possibly in breach of s. 602.04(2) of the Canadian Aviation Regulations.
Mr. Dankwort says that he was not aware of the regulation. That does not
matter. As stated by Lord Atkin in Evans v. Bartlam, [1937] A.C. 473 at
479 (H.L.):
The fact is that there is not and never
has been a presumption that every one knows the law. There is the rule that
ignorance of the law does not excuse, a maxim of very different scope and
application.
[62]
Given
Air Canada’s inaction,
all we are left with is a disagreement as to what was said, by whom, to whom
and in what tone of voice. I see no reason to award any damages.
COSTS
[63]
As
Air Canada has been
successful for the most part, and given that costs usually follow the event, I
see no reason why it should not be awarded its costs.
ORDER
FOR
REASONS GIVEN;
THIS COURT
ORDERS that:
1.
It
is declared that the Privacy Commissioner was not entitled to require Air Canada to provide
her with affidavit evidence in support of its claim of privilege.
2.
The
documents over which Air Canada asserts privilege are privileged except the
report of Mark Shankland prepared May 26, 2005.
3.
Air
Canada is to
provide Mr. Dankwort with copy of that report, as a stand-alone document, with
the name and identification features of the other passenger mentioned therein
deleted.
4.
Mr.
Dankwort is awarded no damages.
5.
The
motion to strike the affidavit of Carmen Baggaley in whole or in part is
dismissed.
6.
The
whole with costs in Air Canada’s favour.
“Sean Harrington”
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