Docket:
T-555-10
Citation:
2011 FC 1266
Ottawa, Ontario,
November 7, 2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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ANTON OLEINIK
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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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REASONS FOR
JUDGMENT AND JUDGMENT
Introduction
[1]
The
applicant seeks judicial review of a March 30, 2010 investigation report and decision
by the Privacy Commissioner of Canada (Commissioner) which found that Mr.
Oleinik’s complaint against the Social Sciences and Humanities Research Council
(SSHRC) was not well-founded. For the reasons that follow, the application is
dismissed.
Facts
[2]
The
applicant is an associate professor at Memorial University in Newfoundland
(MUN). In October 2007 he applied for a SSHRC Standard Research Grant (SRG). He
was not successful. In April 2008, the applicant submitted an access to
personal information request to SSHRC in connection with his failed SRG
application. SSHRC complied with the request. Dissatisfied with SSHRC’s
disclosure in response to the request, the applicant filed a complaint with the
Office of the Privacy Commissioner of Canada (OPC). The applicant’s principal
concern lay with whether “only the personal information from the
institutionally approved sources had been used during the adjudication process”
of his SRG application. Stated more clearly, the applicant’s concern was that
someone at MUN had been contacted by the SSHRC in the process of adjudicating
his SRG application.
[3]
In
response to the applicant’s complaint against SSHRC, the OPC conducted an
investigation in conjunction with the Office of the Information Commissioner of
Canada (OIC). It did so as some aspects of Mr. Oleinik’s complaint fell under
the Access
to Information Act (R.S.C., 1985, c. A-1). The
OPC determined that the applicant’s complaint against SSHRC was not
well-founded and that a matter regarding his membership on certain SSHRC peer
review committees as posted on the SSHRC website had been resolved. Dissatisfied
with the OPC’s investigation and its subsequent report and recommendations, the
applicant commenced this application under section 18.1 of the Federal
Courts Act, (R.S.C., 1985, c. F-7) for judicial review of the OPC’s
findings and report. Specifically, the applicant seeks a writ of certiorari
quashing the “decision” of the OPC and a writ of mandamus ordering the
OPC to conduct an investigation according to terms supplied by the applicant in
his judicial review application.
[4]
While
the applicant advances a number of grounds in support of his argument that the
OPC’s findings and recommendations ought to be set aside, they may be
encapsulated in the contention that the OPC report does not have the requisite
level of thoroughness. The applicant also argues that the OPC has an
institutional bias against individuals and in favour of governmental
organizations. He further says that the OPC had a bias against him,
personally, and that the findings of the OPC ought to be set aside.
[5]
By
way of summary, with respect to the challenge to the investigation, I find that
the applicant failed to identify particular gaps or omissions, or in the
methodology of the investigation that might support a successful application. With
respect to the Commissioner’s recommendations, the Court does not have the
jurisdiction under section 18.1 of the Federal Courts Act to adjudicate
upon the merits of the applicant’s application for judicial review of the
Commissioner’s decision.
Review of
Recommendations
[6]
The
Privacy Act, (R.S.C., 1985, c. P-21), the OPC’s enabling statute,
provides two routes to this Court for the purposes of seeking judicial review. First,
section 41 of the Privacy Act provides as follows:
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41. 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
forty-five 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 forty-five days, fix or allow.
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41.
L’individu
qui s’est vu refuser communication de renseignements personnels demandés en
vertu du paragraphe 12(1) et qui a déposé ou fait déposer une plainte à ce
sujet devant le Commissaire à la protection de la vie privée peut, dans un
délai de quarante-cinq jours suivant le compte rendu du Commissaire prévu au
paragraphe 35(2), exercer un recours en révision de la décision de refus
devant la Cour. La Cour peut, avant ou après l’expiration du délai, le
proroger ou en autoriser la prorogation.
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[7]
As
Justice Tremblay-Lamer stated in Keita v Canada (Minister of
Citizenship and Immigration), 2004 FC 626 at para 20:
“The validity of the [Privacy] Commissioner’s recommendations is not subject to
the Court’s powers of review. The precedents on this point are clear and
ample.” In reaching this conclusion Justice Tremblay-Lamer relied
on the decision of the Federal Court of Appeal, in Canada (Attorney General)
v Bellemare, [2000] FCJ No 2077 (FCA) at paras 11-13, which involved
allegations lodged against the Information Commissioner similar to those lodged
by the applicant herein against the Privacy Commissioner. Noël J.A. held:
Section 41 does not provide for a recourse against
the Information Commissioner (Wells v. Canada (Minister of Transport),
T-1729-92, April 19, 1993 [(1993), 48 C.P.R. (3d) 312 (Fed. T.D.)]).
[…]
In short, the Court has no jurisdiction, pursuant to
section 41, to conduct a judicial review of the Information Commissioner's
findings and recommendations. It was therefore not open to the motions Judge to
allow the application for judicial review to continue.
[8]
The
applicant’s proper recourse was to bring an application pursuant to section 41
of the Privacy Act, naming the SSHRC as the respondent. At a minimum,
this application should be supported by some objective evidence to support the
inference that personal information was being withheld. In this case, despite
being advised clearly by the OPC in its letter of March 30, 2010 that his right
of recourse lay in section 41 and the de novo review of the SHRCC
response, and after subsequently being advised to the same effect by counsel
for the OPC, the applicant persisted in pursuit of recourse under section 18.1 of
the Federal Courts Act challenging the OPC recommendations. In
consequence, the applicant runs squarely up against the jurisprudence of the
Court of Appeal and of this Court.
[9]
The
applicant cannot seek judicial review of the OPC’s non-binding report to, in
essence, challenge the SSHRC. He must address the decision making body itself,
not collaterally or indirectly through the OPC. This is the procedure
contemplated by Parliament.
The
Investigation Process
[10]
I
will now turn to the aspect of this application where the Court does have jurisdiction
and that is with respect to the alleged breaches of procedural fairness arising
from the investigation process. The Privacy Commissioner is, by statute, given
broad latitude to craft investigative processes as she sees fit and, provided
that the requirements of procedural fairness are met, the Court will not
substitute a different process simply because the applicant can conceive of a
fairer or different process: Tahmourpour
v Canada (Solicitor General) 2005 FCA 113 at para 39; Slattery
v Canada (Human
Rights Commission) [1994] 2 FC 574
at para 69; aff’d [1996] FCJ 385 (CA). It is only where the investigator erred
by considering all available and material evidence or irrelevant matters into
account that the Court will intervene.
[11]
In
consequence, the OPC investigation itself is amenable to review. If 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.
Here, however, no particular challenge is taken with the report. Indeed, the
applicant did not point to errors in the reasoning or to facts that might
support intervention. The report, on its face, is balanced and thorough. No
omissions, let alone material omissions, were identified by the applicant. The
applicant simply seeks a different outcome.
[12]
The
second argument advanced by the applicant is that he did not have an
opportunity to comment on the draft report. Neither, however, did the SSHRC.
The Commissioner was under no obligation, as a matter of natural justice, to share
a draft; rather the record indicates that the investigator had a continuous
dialogue with the applicant throughout the investigation process. The aspect
of procedural fairness that requires that the applicant be given a meaningful
opportunity to be heard has been met.
[13]
The
applicant acknowledged in his supplementary affidavit and his memorandum of
fact and law that the matter with respect to the posting of personal
information in respect of his memberships on SSHRC committees had been resolved.
Before this Court, he sought to resurrect the matter. He provided no evidence
to support the contention, other than to say that certain “search engines”
still produce information associating him with SSHRC. Moreover, the
applicant’s complaint is a new one, arising in May 2010, long after the events
in question which underlie this application and is not properly the subject of
this application.
Bias
[14]
The
applicant contends that the OPC is biased, both systemically in that it favours
public bodies over private litigants, and specifically towards him by reason of
his ethnicity. The burden of establishing bias rests on the person alleging
bias. Evidence must underlie it, and a mere suspicion will not suffice.
[15]
There
is no evidence that would meet the test of whether an informed person, viewing
the matter realistically, being fully informed of all the facts and having
thought the matter through, would conclude that the decision-maker was biased:
Committee
for Justice and Liberty et al v National Energy Board et al, [1978]
1 SCR 369,
at p 394.
[16]
The
applicant has no admissible evidence in support of his argument of
institutional pre-disposition towards the interests of public bodies. The
applicant sought to introduce statistical evidence derived from the OPC Annual Reports,
indicating, in his view, such an institutional pre-disposition. This material,
being introduced in evidence for the first time, was properly objected to.
[17]
With
respect to the allegation of bias against him, personally, the applicant could
only point to incidents of what he fairly considered to be impolite and
unhelpful conduct by the OPC staff. There was one e-mail from an OPC official
with an inappropriate reference to the applicant’s presumed ethnicity, for
which the OPC apologised. Although admissible, this is not sufficient to
establish bias, particularly where the OPC report itself appears to be a
thorough, accurate and balanced analysis of the SSHRC’s handling of the
complaint.
Mandamus
[18]
The
applicant also seeks mandamus compelling the OPC to re-investigate the
complaints in accordance with his concerns as to the lack of rigor in the
investigation process. This relief cannot be granted. The OPC has met all of
its obligations under the statute; it received the complaint, investigated the complaint,
and made findings which it communicated to the applicant. Again, the
applicant, in essence, seeks to compel a different outcome. An order of mandamus
will not be granted where the public duty has been discharged (as it has here),
or where it seeks to compel the exercise of a duty in a certain way, as the
applicant seeks: Apotex Inc. v Canada (Attorney General), [1994]
3 SCR 1100.
Costs
[19]
The
respondent seeks an award of costs pursuant to Rule 400(1)(i). She points to
ten motions brought by the applicant, all of which were dismissed. The
respondent began to seek costs only after the fifth motion. In the May 19,
2011, Federal Court of Appeal decision, Mainville JA described the applicant’s
motion for an extension of time as “bereft of any chance of success” and
“frivolous”. In Prothonotary Morneau’s order of February 18, 2011, the
applicant’s motion and relief was described as “unnecessary, vexatious, and
abuse of the process of this Court.”
[20]
As
noted, the applicant persisted in this application despite being advised that
portions of it were beyond the Court’s jurisdiction. The applicant brought no
credible evidence in support of his argument of bias, sought to introduce new
evidence at this stage, resiled from a matter previously agreed to have been
satisfactorily resolved, and brought no precision to his complaints about the
investigation. Nor was any broader public interest identified which would have
been served by maintaining this litigation. While costs are exceptional in
judicial review applications, in these circumstances, the Court, after a review
of draft Bills of Costs and supporting written submissions, awards costs to the
respondent which it fixes at $5,000.00.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review be and is hereby dismissed. Costs are awarded
to the respondent and are fixed at $5,000.00.
"Donald
J. Rennie"
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