Docket: T-1080-10
IN THE FEDERAL COURT OF CANADA
BETWEEN: BRIAN
PATRICK DOYLE
APPLICANT,
-and-
HUMAN RESOURCES AND SKILLS DEVELOPMENT CANADA
RESPONDENT.
BEFORE: The
Honourable Mr. Justice Barnes
PLACE: Charlottetow n, Prince Edward Island
DATE: April 6, 2011
APPEARANCES: Brian
Patrick Doyle, on his own behalf
Corinne
Bedford, on behalf of the Respondent
--- TRANSCRIPT ---
Court Registrar: Hélène Laforge
564, Route 280, Dundee, New Brunswick E8E 1Z1,
tel or fax: (506) 826-1115
TABLE
OF CONTENTS
WITNESS
PAGE
-Oral
reasons 3-14
ITEMS MARKED AS EXHIBITS
No items were marked during
this judicial review.
***Please note that words in
quotation marks “ ” are words that either are not part of the
English language or are words that are not agreed properly.
***Also note that a word
followed by (sic) notes an obvious error by the speaker.
ORAL REASONS RENDERED
BY Mr. JUSTICE BARNES:
Please be
seated. Thank you for your patience.
Mr.
Doyle, let me begin by noting how respectable a job you did presenting your
case today. You did a much better job than the vast majority of self-represented
litigants that come before this Court, and actually, I want to compliment both
of you for the efficiency with which you presented your cases this morning, and
for the tone of the presentations.
I always
appreciate it when despite the fact that you are in an adversarial setting, the
tone of the submissions is gracious and polite. So, thank you for that.
So these
are my reasons:
This is
an application by Brian Doyle under section 41 of the Privacy Act. That
provision provides for the following relief on an application to the Federal
Court:
“Any individual
who has been refused access to personal information requested under subsection
12(1) may, if a complaint has been made to the Privacy Commissioner in respect
of the refusal, apply to the Court for a review of the matter within 45 days
after the time the results of an investigation of the complaint by the Privacy
Commissioner are reported to the complainant under subsection 35(2) or within
such further time as the Court may, either before or after the expiration of
those 45 days, fix or allow.” -- As read
Mr. Doyle has
concerns about four types
of documents that the
Respondent has either not produced or has belatedly produced.
The first
concerns page 2 of his resume, which was not initially produced by the
Respondent but was located later and sent to him.
He thinks
it odd that the version of this page presented to him is different than the
other pages which were produced which contained unique fax transmission
information and he speculates that interview notes may have been removed from
the page that he did receive on the later occasion.
The
second concern involves interview notes that he would have expected in his file
that were not, in this case, produced beyond the notes found on the face of the
reference forms.
Thirdly,
he expresses concern about the Respondent’s failure to transfer the reference
check scores to the master scoring sheet, which he speculates may have been
caused by another undisclosed reference check.
Fourth, he
is concerned about a reference list that he says he left at the interview.
This document was never produced by the Respondent, although he acknowledges
that one of the references he listed was contacted.
The
Privacy Commissioner found that Mr. Doyle’s complaint was well-founded with
respect to page 2 of his resume, but that the Respondent’s explanations for the
other documents were adequate in the circumstances and the complaint therefore
stood resolved.
Mr. Doyle
has also expressed concerns about the diligence of the Privacy Commissioner’s
investigation into his complaint.
The
Privacy Commissioner is not a party to this proceeding, and I am not able to
make any order concerning the manner about which the Commissioner conducted her
investigation into Mr. Doyle’s complaint.
Even if
the Commissioner was a party to this proceeding, there is no basis for any
order to issue concerning one of her investigations carried out in good faith.
She fulfils
the role of an Ombudsman and does not make decisions that are open to being
judicially reviewed in this Court.
My
authority is limited under section 41 of the Privacy Act to an
examination of documents that the Respondent is refusing to produce or perhaps
hiding from disclosure.
I have
evidence under oath that diligent searches were conducted for the material that
Mr. Doyle says he had produced or should have been in the Respondent’s file,
according to his expectations at least.
While I
accept that Mr. Doyle’s list of references has probably gone missing, that page
2 of his resume had gone missing for a time and that some interview notes may
have gone missing, I can see nothing to support an inference that this
situation represents some type of misfeasance or a constructive withholding of
material by the Respondent.
There
would be no obvious motive for anyone in the Department to get rid of
information that Mr. Doyle had produced, and as Mr. Doyle acknowledges, a
finding of some ulterior motive would only be speculation.
I
unreservedly accept the affidavit of Ms. Villeneuve and the truthfulness of its
contents. It is inconceivable to me that anyone in her position would swear a
false affidavit in a matter such as this.
What we
are left with at most is a situation where some documents from an employment
competition interview may have gone missing, and despite the efforts of the
Respondent to locate them, they have not resurfaced.
On the
other side, we have Mr. Doyle expressing a suspicion or as he put it, “it’s
very odd”. What is really odd is the idea that what happened may have had some
ulterior purpose behind it.
Mr. Doyle
did quite well in the competition. If someone was out to derail his career in
the federal public service, it is a strange way to go about it.
In my
eye, this case is indistinguishable from the decision of this Court in Blank
vs. Canada [2000] CanLii II, 16437, where Justice Muldoon was dealing with
an equivalent provision in the Access to Information Act.
At
paragraphs 9 to 11 in that decision, he held as follows:
“Section 41 of
the Act states:
Any person who
has been refused access to a record requested under this Act or a part thereof
may, if a complaint has been made to the Information Commissioner in respect of
that refusal, apply to the Court for a review of the matter ...
This indicates,
as does the wording of sections 49 and 50, that judicial review is available
only where there is an actual or constructive refusal of access continuing at
the time of the hearing in Court. Without a refusal, the Court lacks the jurisdiction
to grant a remedy, since the only one available is that of an order to
disclose.
Constructive or
“deemed” refusals were discussed in X. v. Canada (Minister of National
Defence). Mr. Justice Strayer stated that a refusal of access is a condition
precedent to an application under those sections and the only matter to be
remedied by the Court where it finds for the applicant ... the only remedy the
Court can give is to order disclosure and such an order is not available if
disclosure has already taken place.
In assessing the
validity of the claim, Strayer, J. went on to state:
Unless there is a
genuine and continuing refusal to disclose, and thus an occasion for making an
order for disclosure or its equivalent, no remedy can be granted by this Court
... It is not the role of the Court to immerse itself in the reasonability of
the conduct of the internal affairs of a government department in matters of
access to information, except where a genuine and continuing refusal or deemed
refusal of access can be demonstrated.
In concluding,
the Court found the application to be “frivolous and vexatious because its
futility should have been amply evident to the applicant”.
In further
consideration of the refusal issue, the jurisprudence asserts that where an
applicant claims that documents are being withheld, there must exist some
evidence of the fact beyond mere suspicion. In Creighton v. Canada (Superintendent of Financial Institutions), this Court stated with regard to
acting on suspicion:
There may be a
suspicion in his mind - and it may be a reasonable suspicion - that there could
be more material in the hands of the Respondent, but ... the Court simply
cannot operate on suspicion. Suspicion is something which is communicated to a
good investigator who turns up evidence. The Court will act on evidence but
not on suspicion.” -- As read
So in
conclusion, there is nothing in the evidence before me to establish that the
Respondent is deliberately withholding material from Mr. Doyle or that the searches
it has conducted to date represent some breach of a legal duty under the Act.
Documents
sometimes go missing, and apparently they did in this situation, but I have no
authority under section 41 to make an order in these circumstances.
The
application is therefore dismissed.
The
Respondent is entitled to an award of costs because as previously mentioned,
ordinarily costs follow the event.
Mr. Doyle
argues that he was forced into the Federal Court by the Respondent stonewalling
him. I don’t accept that. We all have choices, and this case is no different.
The Court
is not here to judge the good faith recording-keeping practices of the
Respondent. That is not my role under section 41, and to the extent that this
application involved complaints of that type or concerns about the role of the
Privacy Commissioner, it was ill-conceived.
The
Respondent is entitled to a reasonable award of costs to offset in part the
burden that would otherwise fall on the taxpayers of Canada from this litigation.
I have
looked at the decision in the Blank case that counsel for the Respondent
has provided me. The award given in Blank is higher than would be
appropriate here.
Justice Muldoon,
in the original decision, awarded what he said were moderate costs, which in
the later assessment decision given to me were taken to mean costs under column
3. I’m not sure that is what was intended by Justice Muldoon, but the
assessment officer went on to say in that case that it involved complex factual
issues, and it’s apparent that it went on for a considerable period of time.
This in
comparison is a relatively simple case, albeit with some out-of-pocket expenses
that perhaps are a little more than the norm.
I’m going
to award costs and disbursements in this case to the Respondent in the amount
of $1,500.
Those are
my reasons. Thank you very much for your submissions today, and that brings
this proceeding to a conclusion, unless there are further questions from either
one of you.
MS.
BEDFORD: No, My Lord. Thank you very much.
MR.
DOYLE: No, Your Honour. Thank you for your time.
REGISTRAR:
This special sitting of the Federal Court in Charlottetown is now
closed.
HEARING ADJOURNED AT 12:40 P.M.
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